From Cyberlaw

Contents 1 Stylistic Considerations 2 Class Comments / Discussion 2.1 Ranges of Empathy 2.2 The doctor as zealous advocate 2.3 Unknown Unknowns 2.4 Politics Intertwined With Bioethics

Stylistic Considerations

A few stylistic suggestion in order to help make these class discussion sections slightly easier for all of us to follow. These are merely suggestions and are a) non-binding and b) open for debate. Feel free to add your own insights as you see fit... (Dan)

1. Signing posts: Full names are nice but there are plenty of reasons why they might not be ideal (this is a public Wiki after all). Still, identifying yourself in a way that will allow for all of us to connect what you say on the Wiki to what you say in class is a plus.
2. Structuring / Categorizing Comments and Responses
   1. If you're starting an entirely new post, a Title in Bold is nice. Otherwise, try to be judicious with your use of bold, italics, etc. It's also nice (but certainly not essential) to create a new section for the new post. This will allow people to edit your individual post, without having to pull up the entire page in the Wiki editor.
   2. If you're responding to an existing post it's preferrable to indent your response beneath the original post. Using a colon (:) when you are editing acts as a tab. And using an asterisk (*) will throw a little blue square on the Wiki, to help denote the start of your response. For more stylistic tips and tricks feel free to check out this Wikipedia editing guide.

Class Comments / Discussion

Ranges of Empathy

I've been thinking about the question, "how could German doctors have conducted high altitude and other experiments with human beings" and I'm wondering how much of it has to do with the type of "doctors" that were recruited to design and supervise those experiments. Perhaps there is a range of empathy depending on what subset of medicine a doctor resides within. If the doctors were researchers, used to dealing with animals, then I can see a disconnect of empathy with their subjects if they combined the "good of our warriors" defense with a rather pragmatic and unemotional treatment of their now human subjects as animals. In short: perhaps these doctors were already hard-wired in disconnecting themselves from their subjects. If before they were "only animals" and they then bought into the idea that the subjects were just another form of animal, the leap may not have been too great with that subset.

Another subset may have been military physicians. They, too, have a certain disconnect with their subjects, albeit retaining a bit more empathy toward human beings. A military doctor knows that his patients will be killed in war all the time. I wonder how emotionally invested such doctors become with enlisted men. Perhaps a military hard-wiring where patients/soldiers die on the battlefield all the time allows more cold-hearted treatment of non-military personnel.

The final subset would be civilian clinical physicians. This last group I believe is much more deeply invested in the human condition, suffering--empathy and sympathy. They treat the human condition on a daily basis. They learn the stories, hopes and dreams of their subjects. For this subset to divorce that hard-wiring and strap a terrified person to a parachute or plunge that person into ice-cold water would seemingly require those doctors to turn their back on their very essence of practice and humanity prior to the Nazi movement and the war.

I am not apologizing for any subset of physicians. What I am pondering is if there is a spectrum of empathy that seems to exist between the laboratory researcher, used to dealing with animal subjects, and the clinical physician. Perhaps doctors are conditioned by their environment. If the best and brightest doctors involved in these tragedies came from the "war" that is everyday clinical medicine, I cannot fathom how they could turn their emotions off so easily. As for the physicians that were research or military based: there still must have been some sort of "wild eyed" glee at having real human beings as their subjects. Caught up in the Aryan superiority construct, these physicians may have been ecstatic when allowed to do "research" on humans. This sickens me. Part of gaining a sense of humanity may well require those involved with human research to get in the real trenches of human suffering and realize that the person on the other side of chemotherapy, vaccination research, and other studies walks, talks, loves, fears and cries just as the researcher does.

--Steve Barnes (the apparently now infamous SAB)

• As Morality Slips Away (a response to SAB)

SAB is writing above about the posibility of a "spectrum of empathy" among physicians, one that would allow doctors of a certain stripe to more easily rationalize their dangerous and painful experiments on human subjects. This got me thinking about an interesting piece I read in this week's NY Times which examined the shifting moral compass of penitentiary guards working with death row inmates across the nation. The article provides interesting insights into the moral codes utilized by the prison guards, and suggests that the practice of 'moral distancing' is commonly employed as a coping mechanism. And it is this concept of 'moral distancing' which I think might be useful to us, and what SAB might be implicitly referencing in postulating a possible "spectrum of empathy."

Even for those of us who aren't charged with administering lethal injections to death row inmates, or with conducting cold water experiments on concentration camp prisoners, the notion of 'moral distancing' remains of interest. The study in the Times also examined members of the prison support staff - individuals not directly involved in the execution itself, including counselors - and concluded that, over time, their mere proximity to the executions produced a form of moral ambivalence. The authors conclude:

The finding stands as a caution to the millions of people who work in the service of organizations whose motives they mistrust, psychologists say: shifts in moral judgment are often unconscious, and can poison the best instincts and intentions.

As a law student contemplating the merits of transitioning to life in corporate America the finding is particularly discomfiting. Long have I feared the slow slippage of my moral compass, by immeasurable degrees, only to look in the mirror after a decade of following instructions and find that I no longer recognize myself.

Often I imagined (hoped?) that this fear bordered on paranoia. "To the degree that I am cognizant of the danger," I reasoned to myself, "then I must run a correspondingly low risk of succumbing to it." Further, what sort strength of morals do I truly possess if my morality is unable to survive the stresses and the demands of corporate America?

But these arguments were advanced with the hope that 'moral distancing' was more imagined than real, a boogeyman imagined and not a true enemy. If that is not the case, as the article suggests, then it is time for all of us, whether we are students or practicing attorneys or physicians, to investigate much more carefully the problem of moral distancing, and whether or not it is best combated by the bright light of awareness, by the prophylactic measure of avoidance, or by something else entirely.

-- Dan

• Dan: no, I didn't see the New York Times article, although the article does sound interesting. From what I read into your response, it would seem the article focuses on a temporal spectrum of empathy: same guard over time. I was referencing different doctors, same time, but I'm sure that even within the subset there is a drift. Interesting. Again, I'm not sure about the article you mention because I didn't read it. The New York Times usually burns my hands when I touch it. SAB

The doctor as zealous advocate

Society ascribes no fewer than three functions to physicians: patient care, research, and teaching. These functions are in tension with each other, forcing the physician to prioritize among the good of the individual patient, the whole of society, and education of the next generation of doctors.

At first blush, this seems a difficult balance. Indeed, we do not ask our other professionals to perform such feats. Take for example the lawyer. His allegiances are clear. He is charged to represent his client zealously. His duty is subsidiary to no other obligation (ethics excepted). The lawyer is not compelled to risk his client’s interests in order to change the law for the good of society. Neither is he at liberty to experiment with his client’s defense simply to develop a superior defense for his next client.

Even though the doctor faces potentially conflicting interests, reduced to its essence, the doctor’s role is really no different from the lawyer’s. Both are called into service when the stakes are high, and both are trusted with the most intimate of matters. Accordingly, it seems then that the doctor’s primary obligation must be to patient care – zealous protection of the patient’s health.

In fact, the triad of patient care, research, and teaching can be harmonized in a way that pulls the latter two in service of the former. For example, experimental procedures proven in non-human models, and offering potential benefit to the patient who will undergo them, serve both the patient care and the research function.

Yet the multifaceted duties of the doctor – her role as researcher, in particular – are often used as justification for the euphemistically described “pragmatism” we sometimes see in medicine. This is an illusion. Patient-based research is not an end in itself. Such research is only acceptable to the extent it offers some benefit to the patient who is the actual subject.

We must be brave enough to identify such pragmatism for what it really is – preference for some human life over other. The Tuskegee experiments sacrificed African-American lives for white. The Nazi experiments killed the Jewish to benefit the Aryan. Today’s experiments on the terminally ill consume the dignity of the patient’s last days solely to benefit others.

Similarly, the doctor who supervises “aggressive interrogation” declares the subject’s life worth less because he may be a terrorist. We would not permit such a role for the doctor in interrogation of an alleged non-terrorist criminal. We would never condone a physician who stood by and watched her patient’s condition deteriorate, doing only enough to keep the person alive, but not enough to make them better – irrespective of the patient’s identity as victim or shooter in an assault.

Physicians serve their patients. They must not subjugate that service to the interests of militaries, interrogators, or research projects. This obligation is even greater when the physician is a patient’s only advocate. There is no justification for a physician allowing an outside force to interfere with that advocacy. --jth (aka, Jackie)

• A response and a question

A quick response to JTH- I think the lawyer’s role has similar tensions as the role of the doctor in determining proper, ethical behavior. The lawyer is both an agent for the client (as “zealous advocate”) and an officer of the court (so the oath goes), and, like the doctor, is confronted with choices where one of the many paths may benefit the client (possibly to the detriment of the rule of law and society) and another path may instead benefit the rule of law writ large (possibly to the detriment of the client).

To further complicate things- individuals are not merely “doctors” or “lawyers”, but they also serve multiple roles with varying corresponding status in their lives. A doctor in the army is also a military officer. She may also be a mother. Another doctor may also do supplementary work with a pharmaceutical company. He may also be a widower whose wife died after suffering a number of years from multiple sclerosis. These individuals bring with them a complex set of often conflicting interests and goals derived from their various life roles. This unique mixture impacts how an individual doctor values/weighs her various duties (as JTH stated, the least of which would be patient care, research, and teaching).

It’s easy to say that doctors should serve their patients, period. But we all know that it is not so simple. Just as we know not all lawyers are merely zealous advocates for their clients. Other interests are at play. While we take oaths, I doubt an individual’s capacity to perfectly compartmentalize it’s concerns and obligations. Is the army doctor overseeing the “shaking” of a suspected terrorist acting in her capacity as a doctor? As an officer? A mother concerned for her children? Most likely it is a some mixture of them all. So is she serving the patient, the army, her kids or what?

This is not to bolster the argument for an approach similar to “American pragmatism.” I agree that the use of pragmatism as a justification for preferring one human’s life (or one human’s rights) over another’s is BS.

That’s where I find George Annas’ presentation quite compelling. In order to address bioethical concerns, we should not look to the Hippocratic oath. Instead, we should look towards its roots in the Universal Declaration of Human Rights and the documents progeny. What is at stake here is not a patient’s rights, but human rights. These apply uniformly to the doctor, her patient, her husband, her child, and her supervising officer.

Further, one of Mr. Annas’ final comments regarding the financial conflicts of interest got me thinking about what role pharmaceutical companies and agribusiness play in the education of medical students. As a law student with no background in the life sciences whatsoever, I’m curious. I’m thinking along the lines of how active private law firms do an amazing job drawing students into the private, large firm practice for their summers and eventually hiring them. Do similar practices exist in medical school? - DE

• And More

I'll speak from personal experience regarding the duties of a doctor and the influence of pharmaceutical companies. One only has to look at the Johns Hopkins Medical "crest" to see "patient care, research, teaching" but that applies to individual physicians only in respect to academic medicine. Private practice physicians, the vast majority, concentrate on patient care and really have no "duty" on an individual basis to perform research or even to teach. I think JTH focuses appropriately on this patient care role for the passive "doctor observer" of torture, but I wonder if we should be asking said "torture docs" to come up with better ways of interrogation.

I agree with DE that while the propriety "patient care" duty may be fine with civilian physicians, perhaps there are conflicts with military MDs, etc. I was wondering if the answer wasn't to passively stand by and watch the torture to "near death" but to research methods of information extraction that don't require near death or classic torture. Would it be so unpalatable if we perfected a "truth serum" or the Vulcan Mind Meld, for that matter? I mean, the guy may have blown up a building and some babies.

On the pharmaceutical note: medical students used to leech off of free lunches brought by sales reps, but these were always done in a conference room with a required presentation by the rep, and appropriate Q&A. So I don't think medical students are subjected to this alleged taint, since they are safely housed in academia and, moreover, they really have no say over treatment protocol (and often get spanked for even suggesting a certain "brand name" antibiotic, etc...they are expected to have a real indication for a drug and not a preference). Now the professor with a grant for investigating Zosyn (piperacillin tazobactam) who suddenly uses it in all of his patients, study or not...that's a different (and rare but true) story. I find it frustrating when talking heads lament how the pharmaceutical industry has cowed doctors into using their products, as if a free lunch or pen creates a sacrifice of principles (and even if one wants to argue it does, shouldn't the classy pen from the competitor negate that?).

No, my experience is that "us greedy doctors" (sarcasm intended) somehow manage, for the most part, to avoid the sway of swag that Merck or Pfizer brings our way. Maybe it's because doctors are taught early to be skeptical. So the question becomes, "OK, SAB, if advertising doesn't work, why do they do it?" Well, I'm not sure it does work on the doctor level. It may work better on the institutional level (turkey sandwiches and "look at the money you'll save, hospital X!). What DOES and did work for me, and what is commonly done, are free samples. My office was filled with those, available to any patient in need of financial help by eliminating prescription drugs. That's sort of like giving whatever coat you have to a cold guy on the street. Does that drive up the cost for the "rest of us?" Hey, I'm my patient's advocate, right? Let the rest of the country and world worry about that. [that's the thinking, not mine particularly].

Finally, regarding Professor Annas' Nuremberg focus: I'm not so sure that Nuremberg was some spontaneous generative event of human rights and medical ethics. Even ancient armies had some decorum with prisoners and the dead, and post-World War One there was an outcry regarding the millions of Turks and Russians who died in that war. Nuremberg may have been more publicized, but rallies against "crimes against humanity" existed before the trial. And as for WWII itself, perhaps it was the escalation on both sides that prompted treaties and the rise of inquiry. Firebombing Dresden...Hiroshima...all were similar lessons from our own actions. SAB

• Separating science from medicine: a reply to DE and SAB

The anger and desire for retribution that well up inside a doctor faced with the task of treating a known criminal do not justify a failure to provide treatment. The lawyer who eventually concludes that his client is guilty is not excused from putting on a defense. Ultimately, the duty of both to serve, and serve zealously, controls.

A Military doctor is obligated to treat an injured soldier from the opposing side, without regard for whether that soldier has killed the doctor’s own comrades. The doctor who is also a mother must still come to the aid of a known child molester in the emergency room. As a secular society that believes in human rights, we leave issues of justice and punishment to the law.

Medicine is not an arm of law enforcement. Even military doctors are (or should be) first and foremost concerned with patient well-being. The government must not be permitted to usurp the medical profession and use it to lend credence to deplorable and inhumane acts. The ethical doctor, military or civilian, would not stand by and watch as an officer inflicted harm on an interrogation subject, regardless of her biases, commitments, or sense of justice.

SAB’s question of the propriety of research into other, “non-torture” methods of interrogation is an interesting one. The military has funded research for many years in areas related to interrogation, cognition, and survival. Although I would have to consider different projects on a case-by-case basis, my intuition is that much of this research is acceptable.

Volunteerism and safety are essential components of any research study. The physician-scientist who recruits volunteers for a study involving a potential “truth serum” that satisfies IRB and federal safety requirements is acceptable. When the study subjects are criminals, alleged terrorists, or even military personnel, the potential for coercion is high, and the risks likely unacceptable.

Another key criterion for such research is that the physician-scientist don her scientist hat in the studies. The physician-scientist’s duties shifts when the patient knowingly and willingly acts as a subject, when the “patient” is in fact not a patient at all and in no need of medical attention.

Fundamentally, the division I see is one where the physician-scientist is first and only a physician when her patient is eminently in need, but where she may also be a diligent and active researcher when there is little to no risk to the patient, and the outcome is likely to benefit the whole. --jth

• Conducting interrogation experiments on current prisoners of war violates the Geneva Convention, and you are right in that the GC also requires "our" doctors to treat "their" POWs. So we'd have to go with an IRB of volunteers for experiments. Standing idly by while a POW is tortured seems to violate the GC; I guess that's why we play cute by avoiding the label POW and/or shipping them to torture-happy countries. From a principle standpoint, that makes no sense...POWs suddenly have more rights than the next guy. I really think any study should be undertaken in the private/civilian sector. Military "volunteers?" Did the soldiers exposed to plutonium feel absolutely no coercion? Oh that's right, some of them weren't even told. I distrust military studies not only from a coercion standpoint, but from results obtained from a relatively homogenous group. I'm still trying to come up with the proper "truth serum" starting point.

As for anger not justifying failure to treat a criminal: I'd point out that despite the increasing controls on doctors, the baseline is that no doctor is required to treat anyone. Now, when we get into institutions, such as the military via convention, emergency room staff and the EMTALA, and perhaps the prison doctor as a salaried employee, they do have a duty. But just a reminder that if the Massachusetts Pen called up today and said come on down, I should be able to say no without any sort of guilty conscience. While on the surface it may seem otherwise, think of the ramifications of a health care system that requires doctors to treat everyone as their "duty." What health care system (there wouldn't be any doctors left)? A physician has a duty to his patient, but short of military, on-call or staff MDs, they retain the ability to choose their patients. SAB

• SAB's point on doctor choice is well taken. While I intended to focus on emergency room situtations, the reminder that the doctor can choose whether or not to take a patient under non-emergency circumstances is important. Two questions come to mind, however: 1) When a doctor takes a patient, doesn't he have a duty to care for that patient, and isn't it quite difficult to "fire" the patient? 2) When a doctor chooses to oversee a subject during an interrogation, hasn't he accepted that subject as his patient, and thus isn't he bound to serve that patient (as opposed to the interrogator)? --jth

• Yes, but firing isn't that difficult, unless you count not getting paid as a difficulty (can't fire them for that, unlike lawyers). Some written notification including reason (disruptive, missed appointments, etc.) with the names of three alterna-docs; and
• the duty is to the prisoner; big problem if one thinks docs inaction is breach of duty. but suppose he tried to intervene: would he be restrained? would there be a court martial? suppose he refused to observe: would the death of the prisoner due to his absence create more of a breach? suppose the interrogation could be held without the doc present, without his knowledge, and then only call him in for the "clean up." this creates no duty difficulty for the doc, but the prisoner may be beyond repair and oddly worse off. any way you slice it, it's the torture that is the root of the ethical quandry. the physician, if present, has a duty not to harm his patient, but by preventing irreversible damage (and yet prolonging the session) is he helping or hurting? I guess I have to analogize again: my great-uncle was killed in WWII by bombs dropped on his hospital. he had refused to leave his patients despite the air raid signal and being told to evacuate. had he left, would he have breached a duty? does an MD breach a duty any time external threats to his patients are not defused by him? does the observer have a duty to physically resist the actions of a third-party interrogator and risk his own life (albeit professional and not physical life)? I contrast this with my Holmesian view of such situations and general mistrust of unilateral power: if we absolve the MD of duty in interrogations, how long before he becomes focused on the physiology and not the person...how long before the doc shifts from "stabilize" to "internalize?" I guess my resolution is to say that if the choices are torture with or without a doc, the answer rests in the gray zone between when you or I or any prisoner would prefer death to further torture. We now have one state that allows doctors to assist in suicide, but typically we've frowned on that role. I try to put myself in that observing doctor role...I'm there in the room...and I ask myself what do I do? I help the prisoner survive and minimize the damage. I don't pull my pistol and demand it stop, or I'll be escorted out, and the torture will just continue. So I watch. I tell them to stop at times, maybe more often than I need to, but too often and even a layman (and more so an experienced interrogator) will catch on. I assess my patient and make sure he's not dying or suffering major organ damage. I may protest that he is suffering irreversible psychiatric damage. But the more I push, the more I am at risk of being tossed out of the room. I've got to stay with this guy and help him. So I choose the gray zone, knowing that even though I want to punch Captain T in the mouth, doing so will hurt my patient. Maybe the real hero and the real duty is on all of us, whatever field, to stop torture and prevent the dilemma. SAB

Unknown Unknowns

Professor Annas brought up an interesting point in his lecture in the first class, although he did so in a way that may have been mildly opaque. Annas read aloud a quote by our much-maligned (by myself included) Secretary of State Donald Rumsfeld, which was as follows:

Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns - the ones we don't know we don't know.

That unmanageable mouthful earned Rumsfeld the 2003 Plain English Campaign's award for most baffling remark by a public figure. And when you read it quickly, and especially if you have it read aloud to you, it sounds like absolute gobbledygook. But it’s not.

In fact, as much as it pains me to say this, I’d venture to say that what Rumsfeld was talking about – "unknown unknowns" – is one of the most central themes in bioethics and biotechnology, and should prove very important in this course. Professor Annas may have made this point in his lecture and if he did (and I missed it) I apologize in advance. But in case he didn’t, or even if he did, I think it’s important to draw attention to this concept.

Especially in the realm of bioethics and biotechnology there is great concern and much hand-wringing over the future consequences of emerging technologies such as reproductive cloning, genetic engineering, or any of the other “most egregious abuses of medical research.” With all the prophesies of post-humans, armies of clones, and doomsday-by-genetic-modification scenarios (and, equally, all the utopian predictions of a world freed from disease, hunger, and poverty through the miraculous power of the gene) it is worth remembering that the only inevitable development is that the future will bring with it surprises, and probably great ones.

It bespeaks the fact that we must always figure on novelty without ever being able to figure it out; that change is certain, but not what the changed condition will be. Further inventions and discoveries, for example, cannot be anticipated and allowed for. Only the fact that there will continually be some, and among them some of great, occasionally even of revolutionary significance, is close to certain. -- Jonas, Hans. The Imperative of Responsibility: In Search of an Ethics for the Technological Age. Chicago: University of Chicago Press. 1984. 119-120.

While we attempt to do the best that we can with unknowns of both the known and the unknown variety the capacity simply does not exist to fully and accurately predict what will or will not be possible, and what will or will not result from the technologies and policies we pursue today. And it is nothing if not dangerous to suspect otherwise.

-- Dan

• A Response to Dan

I strongly agree with Dan's underscoring of the fact that we must recognize the importance of unknown unknowns. However, the question that remains in my mind is not whether they exist, but what we should do with them. In my mind, one of the most powerful ways in science for both realizing what we do not know and figuring out how to know what we do not know is through failed experimentation. It is only when something goes wrong that we are alerted to the fact that there is, indeed, a problem, even if the problem has been lurking undetected for some time before.

For example, I often have unforeseen computer problems, and when I try to troubleshoot, I am pretty excited when a problem occurs after I have done something specific and identifiable to the computer, because then I can understand the cause and think of a solution to fix it. Yet, in the realm of biotechnology, this type of experimentation seems awfully frightening. Almost all biotechnologies are first imagined with a view towards somehow helping human beings. To that end, they have to eventually be tested on human beings if they are ever to be perfected. And if one of the ways of realizing the unknown unknowns is through failed or "problem-inducing" experimentation, then it stands to reason that the human test subjects are going to get hurt. How do we avoid this predicament? How do we get past the fact that certain experiments are simply unethical to perform on human beings when those same experiments will often need to be done if the technologies at hand are ever to be understood? For instance, putting aside the fact that almost everyone opposes human reproductive cloning, one of the main current objections to the practice is that it has not yet been proven to be safe or technologically feasible. But if we are banned from experimenting in order to make it safe (since such experiments would be unethical) how will we ever know enough about the unknowns to perfect the technology for use were society to ever morally approve of its implementation?

I am in no way in favor of unsafe or unethical experimentation (or subjecting some people to obviously hazardous experimentation for the greater good of society), nor am I in favor of human reproductive cloning, I just highlight the above situation as an example of the profound problem I see with unknowns and biotechnology. Are we supposed to just forge ahead looking for the unknowns and correcting them after something goes wrong? Are we supposed to stop experimenting (and thus halt scientific progress) for fear of disastrous results such as in the Jesse Gelsinger case? Does recognizing and anticipating that there will be unknown unknowns have any pragmatic applications for the reality of biotechnology?

--Julie Baher

• Flowers, Weeds, and Failed Experiments (Response to Julie)

I think that Julie makes an excellent point: Given our awareness of unknown unknowns, what does that mean we should do about them? Fortunately, I'm not convinced this predicament is quite as crippling as it might seem at first. It's certainly true that one of the principle pragmatic objections to human reproductive cloning is that it has not been demonstrated to be safe (or even possible). With such a potentially dangerous technology when will we ever be justified in human experimentation/trials?

Someone else (Steve? One of our professors/lecturers?) is probably in a better position to speak to this, but it seems to me that we don't require absolute certainty with respect to the efficacy and safety of a technology before we, as individuals and as a society, become comfortable with allowing human experimentation. The point of unknown unknowns is that they are always out there - and they are, by definition, forever beyond our grasp. Were we to attempt to satisfy ourselves that we had somehow addressed these issues we'd never go anywhere.

So what's the solution? To methodically and thoroughly articulate the known unknowns - things that we can reasonably conceive of as being problematic down the line - and to address them. We will never be fully satisfied that we have uncovered all of these potential issues, or that we have fully and completely addressed the ones we have identified. But there comes a point when, even in the absence of perfect information and guarantees of success, science must move forward.

I have in my head a saying about the scientific method: "Let 1000 flowers bloom, and the weeds as well." I had thought this was attributed to Paul Feyerabend, but I can't seem to verify that. If anybody knows who said it, or something similar, I'd be very grateful if you could let me know. Regardless, I think the sentiment is apt: science relies on both the good and bad. Technologies and experiments that turn out successfully, as well as those that don't.

I think this is what Julie is getting at - "failed experimentation." I guess I just don't see it as entirely problematic in the human context. People take all sorts of risks with their lives - skydiving, smoking, novel medical or scientific therapies. Provided the participation is free and informed, at some point we, as a society and as scientists, need to allow people to take those risks. And, I should add, we needn't reach into prisons or concentration camps to find participants - I imagine that there will always be volunteers...

-- Dan

• Two More Cents

I think it's great that two very smart people (Julie and Dan) recognize that the now "famous" Rumsfeld quote is actually logical. Regarding the Great Unknown Unknown and Julie's experimental failure paradigm: First, we allow experiments and technology to go forward not only without absolute certainty re: efficacy and safety, but even when we know that there are serious side effects or dangers. Second, the true Unknown Unknown in an experiment would be a completely unforeseen effect. So Wells' Food of the Godsgrowth agent gets misplaced, the experiment goes awry, and giant wasps come for you: that's a known unknown in a failed experiment. Julie I'm sure refers to something more worrisome: something like space travel and bone density loss (before we found that out...now it seems glaringly obvious), something like cloning and cellular degeneration at age 20 (similar to Blade Runnerbut with the limitation a quirk and not a design). It's hard to come up with an Unknown Unknown, now that exemplary Unknowns are Known (do I get 2nd place to Rummy?).

I'll just leave it at this: Dan is right--science doesn't stand still because we fear unforeseen outcomes. Science diligently eliminates or minimizes untoward outcomes as much as possible ex ante, and on we go. Julie correctly identifies one result if we do so, but even an unforeseen disaster allows us to make causal connections where none were before. And sometimes an experimental "failure" (results not as predicted) reveals something exquisitely wonderful, e.g.Fleming's discovery of penicillin. SAB

Nesson here: late and admiring to this discussion. How was Rumsfield's focus on unknown unknowns responsive to the quesition he was asked?

---Hazards with “informed consent” and human experimentation in the realm of “unknown unknowns.”

The problem with relying on “informed consent” in the realm of “unknown unknowns” is that an individual cannot rationally assess risk unless all of the potential outcomes and their respective probabilities are known. Can providing all the information that we do know in such a context ever be enough? It doesn’t seem like too much of a stretch to speculate that at least some of the individuals who participated in the various clinical trials on Vioxx would not have participated had they known of the increased risk of heart-valve damage. Nevertheless, our society continues to allow individuals to contract into these irrational [by which I mean, outside of reason, not counter to reason] agreements despite all of the unknowns. As indicated in the preceding discussion, allowing individuals to take such risks is often accepted by our society (in the interest of garnering the potential benefits of scientific advance) but fears of the unknown risks have also always provided a tension therebetween.

The challenge with respect to deciding on any particular policy in such areas is the inability to arrive at a coherent/convincing rationale to support any particular decision – as rationality loses meaning when information critical to risk assessment is missing. Does that mean that it’s best to just slow down, take baby-steps and be super-precautious in the hopes that by doing so we will be more likely to identify unknowns and thereby minimize risk/damage today? Or in the alternative, is it best to attempt to accelerate scientific progress such that we can garner the benefits thereof sooner? Each option pits the known few today against the unknown many tomorrow with respect to both benefits and risks. i would love to hear someone provide a coherent argument in support of either. --MEF

Politics Intertwined With Bioethics

Professor Annas raised many thought provoking issues during his speech to the class. One thing that stuck out from the presentation was the overtly political tone of the discussion. It was a bit outside the norm of most lectures at HLS to see the professor’s political persuasion and beliefs so openly interwoven into the discussion. This forced me to think about the politics of bioethics, and how intertwined biotechnology is with the political process and government in general. So much of what we discuss in the realm of biotechnology involves governments imposing limits on the ability of private actors to engage in behaviors that at least some parties deem beneficial. Adam Smith’s “invisible hand” is not the ideal solution to the issues raised by Professor Annas because, as was demonstrated by the Nazi altitude experiments, there can be plausible explanations and benefits for doing unspeakable acts of harm to test subjects. Because there are no market solutions that private actors can work out on their own, the political process becomes a proxy by which these actors resolve their disputes. More importantly, the political process becomes the mechanism by which society agrees to collectively set boundaries for biotechnology.

With the current debate over stem cell research, many of the arguments are focused on the policies of the Bush administration, and Professor Annas made his beliefs about the Bush administration very clear. The real concern with allowing biotechnology development to be guided by the political process lies in the indirect path in which regulations get promulgated. Taking stem cell research as an example, few voters cast their ballots for their Senator or even the President based on their stated policies on stem cell research alone. A host of other factors are thrown in the decision, with the result being that a large swath of Americans may have voted for the current President and still be in favor of federally supported stem cell research. If a market-based approach to biotechnology regulation leaves test subjects open to exploitation, and the political process also proves to be inefficient at generating regulations that fit the norms and preferences of a majority of society, how should we go about tackling bioethics problems? Hopefully the remainder of the course will shed some light on this issue.

--Matthew Bray

• A Brief Addendum

I too was struck by the overtly political tone of this presentation. For me, though, one of the most insightful moments was Professor Annas's juxtaposition of two alternate dystopias: the drugged-out brave new world that President Bush’s bioethics committee fears, and the 1984 scenario of perpetual war and total government control that liberals are trying to avoid. Of the two, the latter seems to generate a more salient fear in me, perhaps because such a scenario appears to already be in the first stages of development (witness the never-ending war against terror, illegal wire-tapping, over-ruling of FDA decisions for political, not scientific reasons, etc.). I appreciated the Professor’s juxtaposition, however, since in the long term, both dystopic views are likely necessary. Viewed on a spectrum, they create an ideological tension that may be the only way to avoid ending up in either nightmarish future. Much like in a tug of war, so long as both sides keep pulling, perhaps we will neither become contented cows nor powerless pawns. On the other hand, there exists room for disagreement over which side has the upper hand at any given time, and, at least to me, now feels like a point in history during which the forces of government oppression and intrusion are waxing, rather than waning. I would have enjoyed hearing more about the evidence in favor of the 1984 side of the debate, though, particularly in the realm of biotechnology (i.e., which of the current regime’s policies with respect to biotechnology are increasing government control and intervention?).

--Christina Olson