Law & Governance

Law & Governance November -0001 : 0-0

What Place Ethics?

Fiona Alice Miller


Margaret Somerville is one of Canada's best-known bioethicists. Her new book, The Ethical Canary, offers readers an overview of Somerville's ethical deliverations on a range of subjects from therapeutic cloning and xenotransplantation through infant male circumcision and euthanasia to system-level decision making.
Bioethics is a relatively young discipline. Indeed the term "bioethics" was coined in 1971. Yet despite this brief history, bioethics has achieved remarkable public and institutional visibility. Most activities within healthcare, including research, clinical practice and institutional organization, are profoundly influenced by ethical deliberation.

Margaret Somerville is a well-known advocate of such "ethics talk." The founding Director of the Centre for Medicine, Ethics and Law at McGill University, Somerville views 'ethics talk' as a source for the communal solidarity and collective values that seem otherwise impracticable in our diverse, secular and hyperactive world. For Somerville, healthcare is a privileged arena for such talk. Healthcare is, as she puts it, an "ethics laboratory" (pg. 4). In the face of profound new technologies, a growing individualist ethos, and a public conversation structured by the media and thus obsessed with compelling individual instances to the detriment of collective concerns, those who work in healthcare are obliged to do ethics.

To date, much of Somerville's work has been published in academic monographs, as conference or commission reports, and in commentary on selected topics in the popular media. The Ethical Canary thus provides a welcome opportunity for readers to gain access to a full range of her ethical deliberations, and to assess whether the "ethical toolbox" that Somerville describes can serve to illuminate and guide practice.

The "ethical canary" is Somerville's chosen metaphor. Where the canary of old demonstrated the safety of coalmines through its survival, the ethical canary identifies ethical minefields through investigation. Somerville considers a range of such minefields in her book, each of which occupies a chapter.

The first part of The Ethical Canary is devoted to an exploration of several new, sometimes speculative, technologies - assisted conception, human cloning and xenotransplantation. The ethical quandaries that Somerville identifies are the classic ones: the need to balance an individual's perception of potential gain with the broader social and metaphysical hazards such practices might produce. Not all that science can do should be done, Somerville argues: ethical progress must form an ongoing complement to scientific progress. Yet a balance is decidedly hard to achieve. In the case of assisted conception and reproductive cloning, attention to the rights of the child (potential or actual) provides some resource for Somerville in enjoining scientific restraint. In the case of therapeutic cloning or xenotransplantation, however, ethical principles provide uncertain guidance for how to decide.

The next set of chapters elevate the discussion from the fact of ethical conflict, to the process by which it is engaged. Somerville addresses complex medical and social decision-making involving euthanasia, non-consensual termination of life support, overruling parents in decision-making about their children's treatment, and the ethics of non-therapeutic practices on infants, specifically, male circumcision. Somerville's expertise in law is especially relevant in these and subsequent chapters, for the high profile cases she discusses attest to the legal foundation of much ethical deliberation. Indeed, it has been argued that ethical deliberation invariably plays catch-up to the law, rather than providing leadership. Unfortunately, Somerville does not directly address this question, but chooses instead to treat ethics and the law as complementary activities.

In the case of euthanasia, Somerville wishes to avoid a legal resolution of the ethical dilemma by giving death "a more human scale and face" (pg. 123). When she turns her attention to the termination of life support without consent, and infant male circumcision, Somerville emphasizes legal obligations to respect the fully informed consent of the affected individual (impossible when the individual is an infant). When discussing the treatment of minors, where legal guardians may be displaced by the courts, Somerville introduces ethical considerations as a force for moderating the heavy hand of the law - encouraging the use of minimalist legal instruments.

In several of these cases, questions of systems negligence emerge into view. For clinicians to practice ethically and legally in the face of complex decisions, they must be provided with institutional mechanisms and legitimate fora for decision-making. At a minimum, Somerville argues, a non-negligent system must pursue due process, gather relevant expertise, and avoid conflicts of interest.

For healthcare managers, the most compelling part of this book, and likely its weakest link, comes at the end, in the two chapters that address system-level decision-making about resource allocation. Once again, Somerville highlights the issues through a discussion of legal cases, where Canadians have sued provincial health ministries for the provision of services unavailable through the public system. Legal decisions have not, as yet, provided clear direction for policy makers. In some cases, provinces have been required to fund treatment which was otherwise unavailable (i.e. not standard treatment in Canada, though available in comparable countries) or which governments sought to exclude from the funding envelope by defining it as experimental (and thus not medically necessary under the Canada Health Act). But in one notable case, of which Somerville disapproves, the court conceded that the financial constraints faced by the province (Nova Scotia) warranted excluding some practices (in this case IVF) from public funding.

Legal decisions have certainly been influential. One case in Ontario lead to public funding of tests for the BRCA1 and BRCA2 mutations, as a clinical service for women at risk for hereditary breast cancer. But legal decisions are likely to be inadequate for addressing system issues. Somerville warns, throughout her book, that one negative consequence of media attention is the tendency to focus exclusively on the emotionally compelling dimension of individual cases. The effect of this is clear in debates over euthanasia, for example, where individual demands for autonomy in decision-making produce far more compelling images than the relatively abstract danger of, as Somerville would have it, licensing physicians to kill. Similarly, in resource allocation decisions, individual desire or need is likely to trump the complex calculations of safety, efficacy, effectiveness and social justice which resource allocation processes demand. This is not to suggest that current evaluative decisions are sufficient, or adhere to best ethical practices, but legal conflicts would seem to be particularly inadequate devices in this fraught arena - whether our goals are good clinical and public policy, or good ethics.

Somerville's book is full of terms rarely spoken aloud in polite conversation, words like "human spirit," "right" and "wrong." She calls on us to embrace a "secular sacred" worldview in which scientific insight and metaphysical vision can co-exist. Somerville is passionately engaged with the issues she discusses and openly declares her commitment to various causes - from her opposition to euthanasia, and infant male circumcision, to her advocacy of a child-centred view in the contested world of assisted reproduction. Whether we agree with Somerville's reasoning or not, we are likely to be moved by this lively text.

Fiona Alice Miller is SSHRC Postdoctoral Fellow, Centre for Health Economics and Policy Analysis (CHEPA), McMaster University.


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