Law and the Pursuit of Knowledge
Mary Warnock, DBE,
I want to raise some questions this evening of a very obvious kind about the freedom of scientists to carry out research, and the relation between the pursuit of knowledge and the law. Academic freedom is something that all civilised and democratic societies most properly value; and this freedom may be thought to cover on the one hand what is taught (which should not be subject to constraints except the constraints of truth and accuracy); and, on the other hand, research, which again, we may think, must be permitted to go where it will, dependent only on the imagination and the intelligence of its practitioners. Since the Second World War, and especially inWestern Germany, the cause of academic freedom has been strongly defended. The risks of government intervention are especially well-known. How is it then that we are soon to see a bill introduced into the House of Lords to restrict embryo research; and that a similar bill introduced in the Commons in the last session was talked out, but would, if it had been allowed to proceed, undoubtedly have been carried by a large majority? How is it that legislation has already been introduced, in this Parliamentary session to make more stringent the restrictions on scientific research using animals, restrictions which have been in existence since the nineteenth century? What are the values at stake which are apparently so much more important than the value of academic freedom?
I propose to try to analyse these values and assess them in a moment. But first I would like to make one highly controversial point. I believe that where, as in the case, we have, and can understand, conflicting values, there is no reason to believe that there is one correct solution to the conflict. It may very well be either that different people value different things, and give priority to different values; or, more important still, that each one of us may hold different and conflicting values, and may find it almost impossible to say with conviction that we prefer one to the other.
If this is the case, then the final resolution may have to be a compromise. To argue that conflict may ultimately be incapable of rational or agreed resolution is not to rely on observation or experience. It is to adopt a theoretical and properly philosophical position, though an unpopular one. It is to assert not relativism, but a certain irresolvable pluralism in moral thought which may be confirmed by observation but does not arise from it; it arises from an analysis of the nature of morality itself. Morality, on this view, is dependent on the holding up for admiration and aspiration of certain ideals. And these ideals are grounded in culture and in history. They have become matters of taste, tradition and feeling, as much as of reason. To embrace an ideal is to love a certain way of life, or the idea of it. There is no more reason why all our loved ways of life should be compatible than that all our friends and lovers should be so.
There are many philosophers, however, notably at the present time. Professor Hare, (a new-look Utilitarian), who deny this pluralism, or believe it to hold only at a superficial level. If, they argue, a man subjects his intuition, his ideals, loves and hates, to the impartial judgement of reason, there will turn out to be one rational solution to the apparent dilemma, and other solutions may be confidently rejected. Anyone who refuses to revise his previous opinion in the light of reason must be judged a fanatic, and outside the pale of civilised discourse. Now reason in this kind of argument is generally understood to be of a broadly Utilitarian kind. It is rational or reasonable to prefer a smaller injury to a greater, and this whether one is considering possible injuries to oneself, or injuries inflicted on the world at large. If I can show that to do one thing will injure twenty people and benefit a hundred, whereas to do the opposite will benefit a mere twenty and injure a hundred, then it is argued that it must be rational and right to pursue the first course. Where there is disagreement about what ought to be done, such disagreement can be settled by clearly showing where the balance of benefit lies. Anyone who does not then accept that what ought to be done is that which brings the more numerous benefits is a fanatic: he is to all intents and purposes mad, and we needn't bother with him.
Such an argument may seem a caricature: and indeed I have deliberately presented it very crudely. But it is the argument that has to be faced in the case, for example, of research using animals or human embryos. I hope in the following pages to remind you how complicated such issues are for moralists; how eagerly lawyers must wait on the edge of the dispute; and finally how grave a matter it is to advocate that the law intervene in a case where academic freedom, and the autonomy of science itself may seem to be jeopardised.
Let us then consider the example of research using human embryos. The simple argument for permitting such research is that the benefits the research will bring far outweigh the harms that may be done in the research. This is the kind of Utilitarian calculus used to justify research by, for example, such eminent and enormously beneficial research workers as Dr Bob Edwards of Bourn Hall. He embarked on research using human embryos long ago when he was trying with Mr Steptoe to perfect a means of fertilising embryos in the laboratory and then inserting them into the uterus of a woman, infertile because of damaged or non-existent Fallopian tubes. As is well known, the first successful test-tube baby was born in 1978, and since then, many hundreds have been born in this country and now elsewhere. These advances could certainly never have come about without research. Such an observation would seem almost too obvious to make, were it not for the fact that some people seem to think that research using human embryos is something wholly new which has never taken place before. The truth is different. Research has been going on among gynaecologists and related scientists for many years. If it had not, we would never have seen the new possibilities, such as in vitro fertilisation, or embryo freezing, that are with us today. The arguments used to justify the research of the scientists at Bourn Hall, for example, and elsewhere, are that the benefits to the infertile are quite manifest: the harms to embryos negligible. It may be asked how this can be, since the embryos used in research are simply destroyed at the end of the research project, just as laboratory animals are, most of them, destroyed when the experimental procedure comes to an end. And what, it may be said, can be less beneficial to a creature, animal or human, than to be destroyed? But the Utilitarian argument is generally put forward in terms of pleasure and pain. If we think, not for the moment of other animals, but of human embryos, it is argued, and surely correctly, that the very early embryo, which has no trace of a central nervous system, cannot possibly experience any pain; while, on the other side, the humans whose infertility has been remedied by the research experience enormous pleasure and relief of suffering. The balance must be in favour of research. I shall examine this Utilitarian argument in more detail later. Meanwhile an interesting point to note is that Dr Edwards and others engaged on embryo research have never argued their absolute right to carry out what research they please. They have always acknowledged the right of Parliament to establish controls which will, in principle, limit the research they undertake. For example, Edwards has never (up-to-date) kept an embryo alive in vitro beyond nine days. He would, in principle, like to keep embryos alive, in order to carry out research into genetic disorders, for as long as thirty days. Nevertheless, above all, he has asked that Parliament lay down limits within which he and other scientists may operate. We come back to the initial question: Why are scientists willing and even eager for controls on their research?
Part of the answer, perhaps the whole of the answer, lies in the fact that scientists are members of society, not outside it. They must work within the framework not only of the law (which is self-evidently true) but of the general moral outlook of society at large, a wider framework than that of law itself. The value of academic freedom which they and other members of universities or research teams may defend is not a very popular or widely canvassed value among society at large. No-one in this country specially loves the universities; they are thought to be set apart, pursuing their own ends, remote, even nefarious. And among members and ex-members of universities, scientists are likely to have the worst press. The public mistrust of science should not be underestimated. In a recent opinion poll carried out by the magazine Woman, the question was asked whether we ever know for certain what goes on in the scientists' laboratories, to which the answer was almost universally 'no'. Scientists are thought of as either deranged, insanely pursuing knowledge for its own sake or for the power which goes with knowledge, or corrupt, in the pay of big business or even secretly of government. In any case they will go in for nameless horrors if it suits them. The myth of Frankenstein is properly called a myth; it speaks to a deep and widespread superstition among people in general.
Given this sort of press, then, it is not surprising that scientists themselves, though they may not be able or willing to be entirely open about what they do (they may be unable to make themselves understood: or they may be restrained by considerations of commercial confidentiality) nevertheless want the public to know that they are working in accordance with agreed regulations; that their laboratories are subject to inspection, and that they themselves are liable to penalties if they carry out procedures beyond those broadly agreed by the guidelines or die law. Only so, they argue, can they get on peacefully with their work, without the scaremongering press or the fanatical liberators beating at the doors of their laboratories. They have no desire to be represented as monsters. They would genuinely like to allay public anxiety, and work towards a position in which they are the trusted servants of the public, not a menace to be feared and reviled. I doubt if there is anyone working with live animals who resents the principle of the licence or objects to the visits of the Home Office inspectors to the labs; similarly all those working with human embryos would welcome a parallel system of licences and inspections.
The dispute starts of course over the nature of the regulations. By whom are they to be established? By whom are they to be enforced? Will public anxiety be allayed by the publicised use of voluntary rather than statutory regulation? Must Parliament lay down the ground rules? Since the nineteenth century there has been an Act of Parliament regulating the use of animals in laboratories, and this Act is about to be replaced by a new one. The system of issuing licences is to be tightened, the monitoring of the laboratories shared between the inspectorate and a standing advisory committee on animal experiments, which shall have a lay chairman, and consist to a considerable extent of non-scientist members. The Committee of Enquiry into embryology and related matters recommended a similar statutory body to regulate the laboratory use of human embryos (and such a body, though this was only hinted at in the Report, would also regulate the use, if any, of live aborted foetuses). Licences would be issued to research workers not in general terms, nor for whole laboratories, but quite specifically for projects which would have to be described and justified on the licence application form, the purpose of the research detailed as well as the number of embryos to be used. There seems in general a fittingness in such a proposal. It seems absurd to have an elaborate system of controls governing the use of laboratory animals, and no such system to protect the human embryo. In addition to the penalty of a withdrawal or refusal to renew a licence, the Committee of Enquiry recommended that, in certain cases, and for certain infringements of the licence restrictions, there should be a criminal penalty. It should, for example, be a criminal offence to attempt to implant a human embryo in an animal of a different species with a view to keeping the resulting embryo alive; and it should be a criminal offence to keep an embryo alive in vitro for longer than fourteen days from the day of fertilisation. It is this last recommendation which has caused most controversy, for though restrictive, and envisaging severe penalties for its breach, it has nevertheless explicitly allowed that research using human embryos is permissible within agreed limits.
How then is the question to be settled whether such research is or is not to continue? The Enquiry had no doubt that a voluntary agreement among scientists to keep such research within limits (a form of agreement now operating according to guidelines laid down by the MRC, brought into effect in the early summer) would, not be enough. It would be necessary to have legislation, given the degree of public concern about the issue, and the degree of suspicion in which scientists are held. So it would seem reasonable, and in accordance with the dictates of democracy simply to say 'let Parliament decide'. Whatever Bill is brought up to regulate research, let it be debated in Parliament and go through its natural course to become law. And in the end of course Parliament must decide since that is the only way to get a law on the statute book. But on such an issue as this, at least three-quarters technical, Parliament may not be very wise or very well-informed. The difficulty is that the issue is both technical and moral.
The law which it is agreed must be enacted must not depart too far from the moral beliefs of the public; not only because it would in fact never get through Parliament if it were too eccentric, too liberal or too permissive, but also because even if it did, it would afford insufficient protection to scientists, it would give them too little security to get on with their work if the various pressure groups were totally unsatisfied. Pressure groups both in the case of research using live animals and research using human embryos, will always be in favour of greater rather than less restriction, for fuller not less full protection of the animal or embryo. There is hardly any such thing as a true pressure group in favour of academic or research freedom. Even you yourselves, the Defenders of Research may seem to be quiet, decorous and hardly visible animals of somewhat skulking habit. This is simply a fact about the present state of moral opinion, and it has to be taken into account in any proposals for legislation. But the law need not follow public opinion quite slavishly, all the same.
Let us consider for a moment a different example; that of homosexual practices between consenting male adults. More than twenty years ago, Lord Devlin argued against the recommendations of the Wolfenden Committee which sought to liberalise the laws governing homosexual practices. He argued that the law must enforce morality; and that morality must be interpreted to mean the common feelings of the public at large. Without such a common enforced morality, he argued, society would collapse. What happened in the event was that the laws were liberalised according to Wolfenden's recommendations and society did not noticeably collapse. Had Lord Devlin then got the public morality wrong? Was Parliament, in taking the less prejudiced, less fundamentalist view, right, where Lord Devlin was wrong about the views and feelings of the man on the Clapham Omnibus? Probably not. It seems that Parliament in this case led public opinion. It is certain that today people's attitude to homosexuality has noticeably changed; and this is perhaps a consequence of the Wolfenden report, which itself reflected not ignorant but enlightened public opinion.
The situation with regard to embryo experiments is of course different. For in this case there is no existing law. Yet it is impossible for the present absence of law to continue, convenient though that might be in many ways. There is no doubt that sooner or later (and now very much sooner) a law of some kind will be enacted as a result of some private member's bill, started in one or other House. The only problem is to get a sensible and beneficial law, rather than a silly and unduly restrictive one.
I do not want to discuss in detail the ambiguities and difficulties of the defunct Enoch Powell Bill nor of its as yet unknown successor. I want rather to consider in general how Government, if it brought in its own Bill, as it should, ought to couch the argument in favour of it. . . how they ought, as they should, to avoid succumbing completely to the pressure groups involved. I would emphasise that this is in one good sense a political question, not in the sense of party politics, bur in the broad sense, in which politics is concerned with the public good. Also of course in the sense in which politics is the art of the possible. Proposals in Parliament must be capable of being debated and, if necessary, amended and agreed. Laws, if they are finally enacted, must be capable of being enforced.
There is no doubt, that in the most general terms a proposal for legislation must be justified by arguments derived from the principle of utility. A law will be a good law if it benefits more people than it harms or restricts, or if the benefits it produced are of so fundamental a kind as to outweigh the harms and restrictions on the other side. Conversely a law will be bad if the harm outweighs the benefits. On such broad lines all social legislation (governing e.g. the relation between landlord and tenant; or regulating opening hours for shops or pubs) must be judged. After all Bentham introduced the Principle of Utility in the first place both as a means of distinguishing good law from bad, and as an analysis of the criteria already in use, and inevitably always used. But to say this is to say very little. For how is the Principle of Utility to be applied? What is to count as harm or benefit? Is it a matter of measurable pleasure and pains? Who are the creatures to be weighed in the scale one against the other, number for number?
Such questions are difficult enough to answer even when the persons affected are all grown-up human beings. The balance between the need for the poor to be housed and the entitlement of property-owners to make a profit from their property is hard enough to find and, in the end, considerations of justice and fairness rather than of pleasure and pain may be invoked in coming to a judgment. But the situation is far more complicated still when the beneficiaries or sufferers are not all of them human. Bentham when he spoke of each counting for one and none for more than one, was certainly not concerned with the pains and pleasures of, for example, laboratory mice. If one mouse suffers in order that I may benefit, perhaps most people would think that was in order. But suppose it is ten thousand mice? Does that make a difference? And suppose that the suffering of the mice is acute, and ends in death, while my pleasure is trivial, and such that I could easily forgo it (such as the pleasure of having satin-smooth, milk-white hands?). Even more difficult are the questions that arise with regard to embryos at a very early stage of their development. We can be sure that mice suffer (though not quite sure if they suffer it in exactly the manner we do). We can be equally sure that the four-cell embryo does not, for it has no vestiges yet of a central nervous system through which stimuli could be transmitted to the brain. It has no vestige of a brain, or any other internal organs. It is simply a collection of living cells. How then can the utilitarian calculus of pleasures and pains be made to latch on to this case? It looks as if embryos cannot count among the elements in the calculus. They are less plausible elements even than mice. To get round some of these difficulties, various devices have been used by those who wish to restrict research. The most blatant perhaps was the use by Enoch Powell of the title 'Protection of the Unborn Child' for his Bill. For it has long ago been decided by Parliament and society alike, and enshrined in legislation, that no child may be used for research purposes, even with the consent of his parents. Moreover since death is the end-point of embryo research, and no child may be deliberately put to death or even allowed to die, then the issue seems to solve itself. No amount of benefit to other people can be thought to justify the deliberate act of bringing about the death of a child, and so if embryos from conception onwards are already children, no further problems remain to be solved. It is of course hard to explain such absolute protection of each individual child on purely utilitarian grounds. Would it not be justifiable, even good, according to the principle of utility, to allow one child to die for the sake of the cure of thousands of others? (If we believe this is wrong, and that nothing could justify the death of this one child, then we have ceased to be Utilitarians, and are following some other principle about the sanctity of each child's life.) The general point that must be made is this: it is possible to argue both that in broad terms laws must have a utilitarian justification. They must be enacted for the good not the harm of the society, while, at the same time, arguing that, in detail, a given law may not be justifiable on utilitarian grounds alone, but may have to fit into a generally beneficial framework of legislation, because there are independent moral considerations which make the law desirable. Thus the absolute protection accorded to a child, who may not be sacrificed for other people even if sick or suffering is a case where moral sentiment is stronger than any calculation of benefits. We have a strong prejudice in favour of the preservation of individual human life, and it would be contrary both to our sentiments and to the broad principle of the common good for such a prejudice to be put aside. It is beneficial that such sentiments should be encouraged.
From the example of the absolute protection accorded in law and in moral sentiment to the individual child (but not to the individual dog) we may move along to the question of the human embryo. It must be emphasised here that it is of no help to look for a solution, to existing law, nor to existing interpretations of the so-called natural law. For the phenomenon of the post-fertilisation embryo existing by itself in the laboratory, as a 'spare', or deliberately fertilised for the purposes of research, is a new phenomenon. We, society in the 1980s, have to make up our own minds how this embryo should be treated. We may seek guidance from analogies, we may search our consciences or our hearts, but the answer we come up with will be substantially new, because the situation we are in is new. Those who say that, for example, traditional, Christianity or the Judaic law give answers to the problem of the treatment of early embryos are wrong. Such doctrines may suggest answers but cannot do more. The new question is to what extent ought the law to afford protection to the laboratory human embryo? Just as we are now compelled to think about the extent of legal protection that ought to be given to the embryo, living by itself in a test-tube and not in its mother's womb, an entity unthought of a hundred years ago, so we have to think again about the extent to which animals other than humans ought to be protected by the law. The original Cruelty to Animals Act (1876) was brought in, exactly as it says, to combat cruelty, the deliberate maltreatment of animals, wherever this was carried out. Cruelty to animals is and will remain a criminal offence. But that the Act originally concerned itself with a particular kind of 'cruelty' is demonstrated by the special status accorded in it to horses. This did not come about because we all love horses best, but because the situations in which horses worked made them especially vulnerable to cruelty. We have only to think of Black Beauty. Experiments using animals were envisaged, but one of the main original functions of the Act was to ensure that such experiments were not carried out publicly, as a kind of spectacle, which would incite, or at least desensitise people to acts of cruelty.
We have come a long way from that point. The new Act will be primarily concerned with the use of laboratory animals: and it will concern itself, in a manner unthinkable in the 19th century, not only with the pain but with the psychological stress that may be caused to animals in the course of research. The need for a new Act is obvious. But the need for the proper testing of drugs and other research uses is increasing, at the very same time as our attitude to animals is changing. For we no longer think of ourselves as totally set apart from other animals. People are far more sensitive than they used to be to the needs and the feelings of animals, since they have come thoroughly to accept that they themselves are, after all, part of the animal kingdom. And so the new law has to determine what will be tolerable to society. The question must, therefore, be raised how the limits are to be set, and on what grounds.
To return to the case of human embryos in the Report of the Committee of Inquiry, we argued that since these embryos were human, they should not be treated like any other research material. They must, that is, have a status in law which would not be expected for non-human subjects, nor for bits of human tissue removed from living bodies, but not themselves living bodies. This status was the basis of the recommendation that research using human embryos should not be undertaken except under strict control; that to use human embryos should require a licence, and that a licence would not be granted unless the researcher could show that the work could not be carried out using anything except a human embryo. Some aspects of human reproduction could, for example, be mirrored by the reproductive systems of other animals. But not all could. Moreover the applicant for a licence would have to show that the ultimate goal of the research was a desirable goal. Research would not be permitted the aim of which was to make possible the production of larger children, or of creatures which were half human, half anthropoid, interesting though these last would be. Research would, on the other hand, be permissible if it was aimed towards a greater understanding of fertility and infertility itself; if it was aimed to improve the techniques of in vitro fertilisation or to identify the defective genes or chromosomes in certain fatal or crippling diseases.
In such cases, we argued, the benefits from research would outweigh the reluctance that the general public would feel at the thought of using human material for research. But the essential point of the recommendations was that research should be limited, its purposes known, and its duration subject, not only to the terms of the licence issued, but also to the criminal law.
I believe that this mixture of arguments, appealing to the principle of utility in a strong form (for the miseries caused both by infertility and certain genetic diseases are beyond all dispute), and yet also appealing to the principle that what is human deserves special treatment at however early a stage of development, is a compromise which ought to be incorporated in law. Nor do I believe that the mixed justification of such a law, part utilitarian, part intuitive or sentimental, is to be held against it. Just such a mixed justification might be used in defence of laws governing pornography, or prostitution; just such a mixed justification might be used to defend tests governing experiments which use animals other than humans. The thrust of the committee's recommendations, as of the recommendations of the committee on Animal Experimentation, is containment. We did not wish to see, and we believed that no-one wished to see, any research programme totally uncontrolled and unregulated. In areas where moral feelings run high, regulation is a good in itself. Openness is another good. The hoped-for consequences of the research are also good. These goods are to be balanced against the evils of the destruction of embryos, and of controls.
Can such a compromise be expected to get through parliament? Or shall we have to resign ourselves to a total ban on embryo research? It may be that, in the case of research using embryos, at least, this will be the outcome, and that we shall have to wait many years before the great therapeutic advances, now seen to be possible, are actually made, at least in this country. And I suppose that in a country with a democratically elected Parliament, it may be necessary to be stoical under such a setback. But there are two points which should perhaps be considered. The first is the enormous, and. in my view, quite irrational power of the so-called Slippery Slope argument in the public and parliamentary mind. This argument is briefly that, if you allow any research using human embryos, or animals as the case may be, then there is no end to the lengths to which this research may go. It is better, safer, to forbid research altogether than to allow some, because there will be no halting the descent down the slope once we have embarked upon it. On this sort of view total prohibition of all alcohol must be better than controlled licensing laws, for there will always be a demand to extend the hours, whereas such a demand cannot be made, or not in those terms, if the consumption of alcohol is itself illegal. The history of Prohibition is not a good advertisement for this argument. Nor indeed is the history of laws governing abortion. Announcing that something is a criminal offence does not necessarily prevent its occurring if people want it enough; it only means that it will occur secretly and subject to no public scrutiny. The belief that a dash down the slippery slope of embryo or animal experimentation cannot be halted, if once science is allowed to begin, perhaps demonstrates more clearly than anything does, the mistrust and suspicion in which the scientific, academic and medical professions are generally held. No-one will trust them round the corner, and certainly not if, round the corner, there is a laboratory full of mad professors and humming, gurgling apparatus, with Count Frankenstein in charge. Such mistrust is, it seems to me, the most powerful argument in favour of openness. Nor do I think that, to their credit, any of the scientists who have been involved in developing the in vitro fertilisation programmes in this country, or in carrying out any research that uses human embryos have been guilty of secrecy. (The same cannot, alas, always be said of those who use animals: they are often restricted by the demands of commercial confidentiality.) But, even if the general public is a long way from trusting either scientists or doctors, they should be able to trust a licensing body which consisted largely of members of the lay public, and which published each year a report on the licences given and withheld, as the Committee of Enquiry recommended. I feel a kind of despair when I hear the Slippery Slope, the Where will it end? argument brought out over and over again, often in unthinking repetition during the course of a single discussion. Lawyers are perhaps in a better position than the public at large to think of ways of introducing regulation such as will allay these almost obsessive fears (even on the Enquiry itself the very thoughtful and well-argued minority argument against any embryo research rested most of its case on the slippery slope). Regulation is, after all, often successful. It is not always easy. But no-one would suggest that the only alternatives, for example, to anarchy on the airwaves, would be the suppression of all broadcasting whatever. No-one would seriously suggest that there is nothing between the sale of any drug whatsoever to the public and the suppression of all drugs, however beneficial, in the conquest of pain or disease. We are, on the whole, not bad as a nation at regulating ourselves, or at establishing lay watch dogs of one kind or another. It will, I believe, be a sadly retrograde step if, in the area of research using human embryos, we cannot trust ourselves to exercise control through such a watchdog body as we do now, albeit uneasily, in the case of the use of animals. And this will not only be a blow to medicine, but, I suggest, a blow to academic freedom, and the freedom to research where knowledge is still urgently to be desired. My second point is this. We have, in my view, just as much of a duty to use our present knowledge and our imagination for the sake of the future, as we have to treat early human embryos as if they were already children or animals as if they were human. The embryos are not children. We need to find a new way of regarding them, compatible both with their humanity and our own. Our own humanity demands too, that we find a proper way of regarding other animals. We must respect them, and protect them, but not pretend that they should be granted that total protection under the law which we, rightly, afford to the fully developed members of our own species.
Last edited: 26 May 2015 12:18