F. M. Kamm, Bioethical Prescriptions: To Create, End, Choose, and Improve Lives, Oxford University Press, 2013       

Jeffrey Brand
George Washington University
Washington, DC, USA            

F. M. Kamm’s latest book is no stylish page-turner, but it has something in common with good psychological thrillers: plenty of unexpected twists and turns. They surprise you at first, but in the end you appreciate the author’s design. If you pay close attention, you may even be able to predict some of the twists.

Kamm’s work requires concentration, but rewards the effort. She focuses intently on getting the right answer, which for her means a theory that coheres with and explains the presumptive moral judgments of her reasonable readers (or at least herself) concerning various imaginative thought experiments. To this end, she gleefully draws whatever distinctions she finds necessary, testing and modifying principles at a dizzying pace. Deep in the dialectic, you may lose track of her point, but she always has one. I can reassure wary readers that Bioethical Prescriptions (BP) provides a more accessible introduction to Kamm’s philosophical enterprise than does her work in pure normative-ethical theory, such as Intricate Ethics (2007) and the two-volume Morality, Mortality (1993/1996). The essays in BP grip the reader more firmly because the discussion is usually anchored in a concrete bioethical issue and each essay stands on its own.

BP collects twenty-seven papers by an eminent bioethicist and moral philosopher. Twenty-three are squarely on biomedical ethics, the remaining four on methodology. The material was published in the last twenty-five years and has been revised by the author. A few arguments and illustrations are repeated, but it is helpful to have the papers available as an organized whole.

The basic headlines are these. Kamm is pro-choice on abortion. She supports genetic enhancement, physician-assisted suicide, voluntary active euthanasia, and biomedical research on human embryos. She opposes certain resource-allocation policies that disfavor persons with disabilities. Given such imprecise characterizations of Kamm’s positions, each is predictable in a liberal nonconsequentialist. But the devil is in the details. Kamm’s moral conclusions are too specific and imaginative to be inferred from the mere fact that she is a liberal nonconsequentialist (as are many biomedical ethicists). You have to read the book. It is profoundly thought-provoking—as painstakingly careful a work of applied ethics as I have found.

The papers in BP fall naturally into five parts: (1) Death and Dying, (2) Early Life, (3) Genetic and Other Enhancements, (4) Allocating Scarce Resources, and (5) Methodology. Relatively self-contained chapters challenge the arguments of Baruch Brody on euthanasia (chapter 6), J. David Velleman on assisted suicide (chapter 5), Jeff McMahan on the ethics of killing in marginal-life cases (chapter 13), and Ronald Dworkin on abortion (chapter 11). There are also worthwhile excursions on dementia and advance directives (chapter 7), brain death (chapter 8), and Münchausen syndrome by proxy (chapter 14).

Kamm’s work on the subjects in parts one and two is especially well-known. Many of the papers in these parts were published in prominent venues. Therefore, I shall focus more on parts three and four, which have received less attention and are less readily available.

Kamm wages bioethical battles on several fronts, facing a diverse set of philosophical opponents. On one front, her opponents are consequentialists, typified by Peter Singer and health economists who claim that maximizing quality-adjusted life years (QALYs) is the most (if not the only) important social value to serve when allocating healthcare resources. On another front, Kamm challenges “conservative” opponents of human embryo research (Leon Kass), human genetic enhancement (Michael Sandel), and abortion. In a third theater, Kamm confronts some of the stronger positions associated with advocacy for persons with disabilities.

Kamm’s method involves formulating mid-level moral principles, testing them with thought experiments, and refining them accordingly. She invents principles that are entirely her own. She states her positions with a degree of precision invariably exceeding that of her opponents. Kamm prizes consistency, but she never claims that her principles will (or will not) be subsumable to a single, master principle. She leaves us with an unreduced, and potentially irreducible, plurality of mid-level principles. Her agnosticism about what, if anything, unifies her various views invites us to explore tensions between her positions in disparate bioethical debates. In the remainder of this review, I shall examine tensions between her treatment of persons with disabilities and her treatment of fetuses and embryos.

Consider the following argument, which Kamm rejects:

1. Disabilities make life worse for the person whose life it is, other things equal. That is why we try to prevent or correct them.
2. Hence, we will get a worse state of affairs if we help a disabled person whose disability we cannot correct rather than help someone else equal in all respects except that he lacks the disability.
3. In deciding whom to help with a scarce resource, we should try to produce the best outcome.
4. Hence, we should help the nondisabled, other things equal. (434)

The third premise is a consequentialist principle of resource allocation. One argument for rejecting this principle invokes the Islands Case, which appears at several points in part four:

One person is on Island A, and another is on Island B. They share all the same properties, except that one has recently lost a hand and the other has not. Because the loss to one person is so recent, the two people share equally good pasts. We can save the life of either one but not both. Arguably, each will be as badly off if we do not help him, for each will be dead, having had the same length and quality of life. (434)

Kamm believes that an agent deciding whom to save should disregard the fact that the two-handed islander will have higher quality of life if we rescue him than the one-handed islander would have if rescued. This verdict is suggested by what Kamm calls the Principle of Irrelevant Goods (PIG): “sometimes the fact that we can produce an additional good if we choose to perform one act rather than another is morally irrelevant” (425). PIG, which Kamm elaborates impressively throughout chapter 21, directly contradicts consequentialism. Applying PIG to the Islands Case, Kamm writes that

what each person is capable of achieving is the part of the outcome about which each reasonably cares most, especially given the potential loss that is at stake for each. Put differently, what is reasonably held to be the most important to each person can be had by either—long life saved with good quality of life. Furthermore, we should take seriously from an impartial point of view the fact that each person, from his subjective perspective, wants to be the one to survive. Fairness may require, therefore, that we not deprive either person of his equal chance for the great good of lengthy survival for the sake of the additional benefit of a hand in one person’s case. (435)

This important argument entails that it is sometimes impermissible to count someone’s disability against him in competition with the nondisabled for lifesaving resources. This conclusion would be embraced by virtually all advocates for persons with disabilities (APDs). It sets Kamm against consequentialists such as Singer and the QALY-maximizers. But Kamm is not simply “on the side” of the disabled and “against” consequentialists. Her argument does not proceed from the premise that persons with disabilities have suffered as historically disadvantaged minorities (although she surely accepts this proposition, as I do). Nor does she arrive at conclusions that categorically favor persons with disabilities. She takes many positions that will disappoint the strongest APDs. For example, Kamm actually supports the first two premises of the argument above. The first is Singer’s view that a disability makes someone’s life worse for him than a non-disabled life, ceteris paribus. Kamm agrees with this premise (475) and its implication in the second premise that we create a worse state of affairs if we help a disabled person (whose disability we cannot correct) instead of a non-disabled person who is otherwise the same:

It is truly better not to have these impairments (other things being equal). That impairments are bad is commonly thought to be the basis for our attempts to prevent and cure such conditions as blindness and paralysis through common medical practice, on the assumption that no other compensatory goods accompany the impairments. (277)

BP takes many other positions that distance Kamm from stronger APDs. A few examples of her views:

• The fact that a fetus has a disability can constitute a pro tanto reason to abort it. (279-282)
• It is generally permissible to “cure” disabilities via genetic interventions. (332)
• “It may sometimes be permissible to deny a scarce resource to someone who is disabled because he is disabled per se.” (447)

A recurring point in BP is that there are both permissible and impermissible reasons to disfavor persons with disabilities in competition for medical treatment. Consider the following case:

We have a scarce resource to distribute, and if we give it to A, he can then also carry it to another person, C, who needs our resource as much as A and B do. Person B cannot do this. In this case, it is permissible, I think, to select A over B, excluding B merely because he cannot be instrumentally useful. This is because doing this helps us to better serve those who directly need our resource. This contrasts with the previous case in which the doctor would save others who do not need our resource but only need his skills. Hence (surprisingly), it is not distinguishing people on the basis of whether they have an instrumental role that determines if our behavior is objectionable, but rather whether our choice leads us to use our resource for its best direct effect (rather than indirect effect . . . ). (415)

This case illustrates what Kamm calls a linkage: a causal relation between a disability and other effects that is relevant to an allocation decision (442). Kamm thinks it is permissible to disfavor persons with disabilities for linkage-mediated reasons, as illustrated above. But I can imagine person B objecting that it is nonetheless unfair to treat his disability as a reason to give the resource to A. Some individuals with disabilities will be insulted by various other positions of Kamm’s already mentioned: 1) her view that a disabled life is not as good for the person living it as is a non-disabled life, ceteris paribus; 2) her willingness to treat fetal disability as a reason to abort; and 3) her support for genetic “cures” for disabilities.

My point here is not that Kamm’s arguments for these conclusions are fallacious or her conclusions mistaken simply because they offend some decent people. Rather, I wish to emphasize an unexplained asymmetry in Kamm’s treatment of different moral intuitions. Some people have the intuition that it is immoral to treat differences in quality of life as a reason to rescue the two-handed islander. Some people (including many of the same people) have the intuition that it is immoral to abort a fetus because of a physical disability. Kamm treats the first intuition as a fixed data point that moral theory must simply accommodate. She never questions its reliability. At the same time, she treats the second intuition as obviously unreliable. She never attempts to accommodate or defend it.

So I offer Kamm a challenge. In the Islands Case, she concludes that it is wrong to treat quality-of-life disparity as a reason to favor the two-handed islander over the one-handed. Notice that her argument does not depend upon any assumption that taking disability into account, in itself, makes the person with the disability worse off. Kamm thinks we should decide randomly which islander to rescue. Of course it is worse for whomever is not rescued, but it is not worse for the one-handed islander to lose the “coin flip” than it is for him to be passed over because of his disability (at least if he never learns that his condition was held against him). He has the same mental states and dies at the same time in both cases. But Kamm thinks it is wrong, nevertheless, to treat his disabled quality of life as a reason to rescue the other islander. She believes, in other words, that the reason why it is wrong to decide on this basis has nothing to do with the effect (or lack thereof) of the decision on anyone’s mental states. My challenge to Kamm is to reconcile this belief with her arguments about the moral status of early life.

Kamm assigns to embryos very little, if any, of what she calls “noninstrumental” moral value (169). She accordingly rejects the conservative principle that “we must not create embryos which we intend to use in research that leads to their destruction” (141). She believes that it is morally permissible to create an extra embryo in order to destroy it for the purpose of keeping other embryos alive (142). The major premise of her argument is that embryos have no mental states—they are “not capable of being a conscious or experiencing subject” (143).

I have no cause to question Kamm’s premise that embryos lack mental states. But the decisive weight that Kamm places on the absence of embryonic mental states contrasts with her treatment of persons with disabilities. Kamm never contemplates a parallel between seeing embryos as less than fully human and seeing disabled persons as less than fully human (or as less than fully flourishing as humans). She believes that disabilities lower one’s quality of life, ceteris paribus. She argues that it is impermissible to treat this fact as a reason to favor persons without disabilities, even if deciding on this basis has no effect on the mental states of persons with disabilities. Yet she claims that an embryo’s lack of mental states renders its destruction morally permissible.

Of course, persons with disabilities (at least, the ones who matter to Kamm) have mental states, whether or not these states are affected by a particular decision. And possession of mental states can obviously have moral relevance in some cases. For example, it is pro tanto wrong to penetrate the body of a sentient human being with a needle, thereby causing pain and injury. It is not pro tanto wrong to penetrate an embryo with a needle. The moral difference tracks consciousness or lack thereof. It is not obvious, however, that the fact that an individual is currently conscious (or was previously conscious) has any relevance to the morality of actions that will never affect his mental state anyway. The fact that penetrating an embryo with a needle has no negative effect on anyone’s mental states is what makes it permissible to do so. Analogously, one might say, there is no negative effect on anyone’s mental states if we choose to rescue a non-disabled person because his future quality of life will be higher than that of a person with a disability (assuming we keep our reasoning secret). This fact should make it permissible to do so, ceteris paribus, under those conditions. Conversely, if decisions with no causal impact on someone’s mental states can nevertheless wrong him, then one cannot infer, as Kamm does, that decisions that have no effect on the mental states of an embryo (because it does not, nor will it ever, have any mental states) do not wrong the embryo.

In fact, many decent people believe that damaging or destroying an embryo, either for convenience or as a means to an end, is inherently disrespectful of human life and therefore pro tanto immoral. Kamm cites authors who take this position, but she seems confident that their intuitions are simply mistaken (141). This is puzzling, because she uncritically endorses other intuitions regarding the inherently disrespectful nature of certain actions. Examples include 1) the intuition that it is wrong to save the non-disabled islander because of his higher quality of life (435); and 2) the intuition that it is wrong to push a heavy person off a bridge in order to stop a trolley from killing five people on the track in the Bridge Case (578). Not only does Kamm credit these intuitions, she spends thousands of words ingeniously working to formulate moral principles that accommodate them (in BP and earlier books). Intuitions about the inherent value of embryonic life, by contrast, receive no presumption of credibility from Kamm and virtually no effort at accommodation via nuanced moral principles.

It is also noteworthy that Kamm resists “consequentialist” efforts to debunk, discount, or explain away our intuitive revulsion at the prospect of pushing the heavy person off the bridge (Kamm 2009). But then she implicitly debunks, discounts, and explains away popular “conservative” intuitions about the morally permissible treatment of embryos. I, myself, do not share these conservative intuitions. But neither do I share Kamm’s intuitions about the wrongness of pushing the heavy person off the bridge and rescuing the two-handed islander for his higher quality of life.

Here is another way to make the point. Regarding the Islands Case, Kamm argues that we should decide randomly because each man reasonably cares most about the same thing: “long life saved with good quality of life.” This fact entails that lesser goods on one island or the other are irrelevant to the choice between them (435). Presumably she also thinks it is immoral to rescue a two-handed newborn baby because he has higher expected welfare than a one-handed newborn (if only one can be rescued). But neither baby actually cares about its own survival, so “equal subjective care” cannot be why such reasoning is (putatively) immoral. Indeed, Kamm thinks that what matters morally is not what anyone actually cares about, but rather what it would be reasonable for them to care about. It would be reasonable for the one-handed person to care about survival as much as the two-handed person cares, regardless of how much each actually cares. That is why it is wrong, according to Kamm, to treat the impact of one-handedness on someone’s quality of life as a reason to disfavor him.

If, as Kamm claims, what matters is not actual subjective care, but rather reasonable care, then perhaps we can coherently say that, although an embryo does not actually care about anything, it would be reasonable for her to care as much about her own survival as you care about yours. If that were true, then reasoning analogous to Kamm’s reasoning about the permissible treatment of persons with disabilities would entail greater moral protection for embryos than Kamm supports. Perhaps Kamm would respond that it is meaningless to talk about what would be “reasonable” for an embryo to care about, precisely because it has no mental states. But this is just the issue. Why should the fact that embryos do not actually care about anything render meaningless all statements concerning what it would be reasonable for them to care about?

I happen to agree with Kamm that destroying human embryos for medical purposes is morally permissible. I agree also with her conclusion that it is sometimes unethical to treat someone’s disability as a reason to disfavor him for aid. But I think there are arguments for the second conclusion that coexist more harmoniously with Kamm’s arguments about embryos than do her own arguments for the second conclusion. The indirectly consequentialist arguments that I envision would assign no moral significance to considerations that do not affect anyone’s mental states. Here is a simple example of such an argument. We are still emerging from centuries of civilization in which persons with disabilities have been treated as second-class citizens. Given this history of subordination and exclusion, it is reasonable for persons with disabilities in our society to interpret and experience as disrespectful almost any policy that disfavors disability per se. Publicly endorsing, enacting, or enforcing such policies can inflict substantial emotional distress on persons with disabilities, their loved ones, and allies. It can perpetuate unjust subordination itself and encourage unjustified discounting of the welfare of persons with disabilities. These negative side-effects constitute pro tanto reasons to reject such policies under present historical conditions.

Kamm agrees that we have reasons to reject such policies today. But her argument is not limited to present historical conditions. Her argument entails that such policies are necessarily wrong, whereas indirect consequentialism entails that such policies are, at most, contingently wrong. Consider a standard QALY-maximization principle according to which we ought to prefer the two-handed islander for rescue. Kamm’s nonconsequentialist arguments entail that deciding on this basis would be wrong even if no one, including the islanders themselves, took offense or was otherwise negatively affected by the existence of such a policy or practice. But imagine a world in which there had been centuries of entirely fair treatment of persons with disabilities. Following that history, the policies that Kamm condemns might not be experienced as disrespectful by anyone. An indirect consequentialist position entails that such policies might be permissible under such conditions. Without a history of injustice for persons with disabilities, policies that revolt us today might seem no less respectful than policies favoring the young over the elderly for scarce lifesaving treatments because the young have more potential QALYs ahead. Kamm persuasively defends the latter policies as respectful and just (441–444).

Of course, some readers will insist that favoring the two-handed islander for his quality of life really is not just contingently wrong, but necessarily so, as Kamm’s position entails. They will treat the modal difference as supporting her argument over indirect consequentialism. But the claim that a QALY-maximizing policy is necessarily wrong, even if awareness of its existence has no negative impact on anyone’s mental state, sits uneasily with Kamm’s quick defense of instrumental embryo destruction. By contrast, an indirect consequentialist framework allows us to support both the useful destruction of embryos and the impermissibility (albeit historically contingent) of at least some QALY-maximizing policies that disfavor persons with disabilities.

With these brief remarks, offering little more than provocation, I invite readers to discover for themselves the extraordinary twists and turns of Bioethical Prescriptions.

Jeffrey Brand
George Washington University
Washington, DC, USA

REFERENCES

Kamm, F. M. 1993. Morality, Mortality, volume I: Death and Whom to Save From it. Oxford: Oxford University Press.

———. 1996. Morality, Mortality, volume II: Rights, Duties, and Status. Oxford: Oxford University Press.

———. 2007. Intricate Ethics: Rights, Responsibilities, and Permissible Harm. Oxford: Oxford University Press.

———. 2009. “Neuroscience and Moral Reasoning: A Note on Recent Research.” Philosophy & Public Affairs 37 (4): 330-345.