Andrew Park- A New Dignity Mechanism: The Problem of Dignity in Bioethics and a Potential Solution

To Timothy Caulfield and Roger Brownsword, confusion regarding the use of dignity in bioethics can be boiled down to a conflict between the human-rights perspective of dignity and the "dignitarian alliance" perspective. The former position defends a conception of dignity that has founded modern human rights, while the latter uses dignity in various forms to impede biotechnological developments. According to Caulfield and Brownsword, the views of the dignitarian alliance should not be adopted by the government of any pluralistic democracy because despite being potentially legitimate, they cannot be said to be universal. If adopted, the views of the dignitarian alliance undermine the integrity of biotechnological policies due to the partiality of such regulatory action (as the government adopts a stance on dignity that is not universal) (Caulfield and Brownsword 75). Concerns about dignity's use in bioethics discourse extend beyond Caulfield and Brownsword. Ruth Macklin, for example, believes that dignity's vagueness obscures the underlying principle of respecting persons and their autonomy (1419); Steven Pinker, in response to the formation of the President's Council on Bioethics in the United States, contends that characteristics of dignity such as its relativity and fungibility deem it unfit to be such a central concern of bioethics (Pinker).

This paper will defend the position that dignity should factor into bioethics discourse, but that significant reorganization to the conventional understanding(s) of dignity is required to make dignity a potent and constructive element in bioethics and, more largely, democratic procedure. Caulfield and Brownsword's concerns with the dignitarian alliance suggest that any definition of dignity that should guide the regulation of biotechnology should be as universal as possible in order to remain consistent with democratic impartiality. While some retreat to a minimalistic definition of dignity that can be applied to as many people as possible, while others attempt to accept one specific definition while rejecting all others (the latter of which categorically denies the attribution of dignity to certain individuals), I propose that we rethink dignity as inclusive and commensurable. Such a conception of dignity would prove useful in the field of bioethics because it would require governments to be explicit in their use of dignity-language and thus justify their positions which, in a liberal democracy, would be to prioritize the dignity of autonomy that arises out of one's freedom of will.

To clarify how the term dignity should be applied in bioethics, this paper will work through various controversies regarding the use of dignity in bioethics, both in general and within the more specific contexts of abortion and euthanasia. Then, it will evaluate leading interpretations of dignity that may seem at odds with each other and argue that they are indeed commensurable. This commensurability ties into the development of a new judicial methodology-one that productively employs dignity in bioethics by requiring clear justification for adjudications. This clarity of reasoning will, in turn, compel judicial decision-making that promotes democratic values such as the protection of one's individual autonomy. The development of this methodology will be concluded with its application in the contexts of abortion and euthanasia.

Caulfield and Brownsword identify a battle in bioethics between the human-rights perspective of dignity, present in the Universal Declaration of Human Rights, and the dignitarian alliance, which uses various vague versions of dignity to condemn biotechnological advancements. The former definition of dignity is clear and consistent in its reinforcement of autonomy and self-determination by sticking to one conception of dignity, while the values of the dignitarian alliance lack such clarity and consistency (Caulfield and Brownsword 73). For example, the dignitarian alliance finds the commercialization and patenting of human genetic material to be inappropriate as it commercializes humanity, which would lead to the commodification of humans (73-74). Here, the dignitarian alliance extends two views. First, it claims that people are not commodities, a noncontroversial, widely held viewpoint. The second and more contentious claim, however, involves equating one's body parts to their personhood (74). Whether these two entities are equal is a controversial debate that concerns patenting, human cloning, and even the selling of organs.

One problem in equating a person to their body parts is organ donation. If it is permissible for someone to donate their organs and should they not be allowed to profit from this donation? If the sale of organs is permissible, this direct commodification of body parts can potentially lead to an increase in violence as people may try to take another's organs as a form of robbery. However, this threat arguably still exists without the legalization of organ sales, due to black markets that illegally host the sale and purchase of body parts. Perhaps legalizing the sale of body parts, then, removes the unpredictability and lack of regulation in the black market, taking an underground illegal practice and making it safer through regulation. In any case, the abstract debate over how significant body parts are to one's personhood has significant ramifications.

Caulfield and Brownsword also look at the use of dignity-language in policies regarding human cloning and stem cell research. They find that different perspectives of dignity converge on human reproductive cloning but diverge on more specific uses of therapeutic cloning, particularly the use of human embryos for research. The human rights perspective of dignity would find that embryos produced from the free and informed consent of right holders are not themselves bearers of human rights. The dignitarian alliance, however, would consider the use of embryos to procure stem cells to be a direct violation of human dignity, threatening human life by compromising some vague quality simply referred to as human dignity (75). The moral question feeding this ambiguity in dignity-language, then, is the moral personhood of an unborn child. Overall, Caulfield and Brownsword's concern with dignity is not that any of the dignitarian alliance's positions are unjustifiable, but that they are not universal, such as with the fetus' status of moral personhood. Government regulation that adopts the dignitarian's position, then, would appear to be acting undemocratically by showing partiality in favour of the dignitarian alliance.

However, dignity can be conceptually restructured to provide meaningful and constructive content for the bioethics discourse. Though some may contend that dignity is a useless concept in bioethics, and that it can be seamlessly replaced with "respect for persons", this objection appears to oversimplify the concepts "respect" and "persons", which in the modern context appear to relate more to the respect for one's autonomous self-determination, as autonomy has become the essential feature of personhood (Davis 26). In restructuring dignity, this paper develops significant renditions of dignity, including the dignity of autonomy.

The first significant interpretation of dignity is the dignity of autonomy. It is pertinent to any bioethics case that potentially restricts one's choice of action (such as abortion or euthanasia), and this dignity extends to beings that have actual autonomy as well as potential autonomy (Illies 517). Moreover, the rising significance of such views of dignity coincides historically with the rise of modern liberalism which, at least in John Stuart Mill's view, is wholly unrestricting of individual autonomy as long as one's actions do not harm another (Davis 26-27). A criticism posited by Denise Réaume to this conception of dignity of autonomy is that there exists a dilemma: the government can either treat people as fully responsible for their autonomy in autonomy-stunting circumstances (e.g. due to socioeconomic situations that force certain lifestyles or decisions), which allows the government to shirk accountability for the existence of these circumstances, or the government can deny this group autonomy altogether, in turn stigmatizing certain people as unworthy or incapable of self-determination (16). This concern will be addressed by other aspects of this paper's argument, as the former horn of the dilemma is bypassed by the proportionality analysis of commensurable dignities, while the latter is bypassed by the institution of reputation-based dignity.

The second major definition of dignity is the dignity of life, also known as intrinsic dignity, attributed to people due to their nature in relation to the divine or their capability for morality (Rosen 17, 22). This dignity becomes especially pertinent in discussions of abortion and euthanasia, particularly when paired with questions asking about the moral personhood of a fetus or if one has the right to end their own life. The dignity of life, however, is arguably less of a priority than the dignity of liberty. The value of human life, apart from its intrinsic value as life, comes from the qualities of human life. Human life is valued over animal life because human life has the capacity for higher levels of pleasure, contemplation, and self-determination. These qualities are what make humanity special. To assert that human life is better than animal life solely on the basis of the intrinsic value of life would be to adopt speciesism. Certain theologians might contend that human life is particularly valuable because humans are made in the image of God (imago Dei). However, being created in the image of God would mean that humans alone have special qualities that resemble those of God, and it is those qualities, not life itself, that grounds dignity. Even from a theological standpoint, the dignity of autonomy and self-determination trumps the dignity of life. This is not to say that the dignity of life is pointless, as it provides the moral imperative to protect all life as best as possible. However, if the dignity of life were in direct opposition to the dignity of autonomy, the latter should generally be given preference.

The third and final major strand of dignity is the dignity of one's reputation. Similar to Daniel Jones' view of "attributed dignity," this form of dignity is best characterized as "the good that is harmed by humiliation, by degradation, or by demeaning actions or social structures", underlining the importance of one's social relationships (527). This view that all persons should have their statuses respected is a phenomenon that Waldron identifies as the result of an "upward equalization of rank", where the status once held by a noble or aristocrat is extended to encompass all people (229). This dignity is particularly important to the discussion of abortion, as more progressive developments in the abortion dialogue have started to consider the importance of a woman's relationships with her community and, importantly, her understanding of these relationships (Siegel 522). One might object to this strand of dignity by asserting that humiliation is not solely caused by external actors but is rather felt in large part because of an individual's susceptibility to humiliation (and if they had more mental toughness, they would not be so easily humiliated). However, in addition to its disregard of psychological harm, this criticism blatantly underestimates the external consequences that reputational damage can instigate. Even if the criticism's premise-that humiliation is the fault of the humiliated-is assumed true, attacks on reputation can still constitute real, tangible harm. For example, the enforcement of a misogynistic social structure can lead to tangible economic harms such as a gender wage gap, or physical harms such as the increased risk of domestic violence and rape, as women are generally viewed in this society as lesser than men. The demeaning of one's social status, then, develops significant harms in addition to the psychological harm it causes to the demeaned.

These three main forms of dignity may not seem commensurable at first. One of the main characteristics of conventional dignity is its inviolability, hence its common use as a foundation for human rights. Many of the problems with dignity, however, stem from the combination of dignity's inviolability and its array of meanings. One way around this dilemma is to partially deny dignity's inviolability, instead asserting that certain dignities can outweigh other dignities. This way, no worthy aspect of personhood is denied dignity-a title which, in itself, carries emotional connotations of respect and profundity (Jones 531)-but no single aspect of dignity is given categorical preference. Ideally, all dignity should be respected, but in cases where some form of dignity must trump another, the methodology most consistent with liberal democracy (while avoiding being vague or useless in bioethics) is a clear explication and analysis through proportionality.

A method for the commensuration of these three dignities is proposed by McCrudden, although McCrudden's methodology was derived for the commensuration of human rights. The first step in McCrudden's proportionality analysis is to establish whether the limitation of a certain dignity furthers a legitimate aim. Then, one must consider whether the limitation of that dignity rationally furthers the legitimate aim at hand. Finally, the restriction on dignity must be ensured to be the least restrictive constraint on dignity, and the benefits of this constraint must outweigh its harms (715).

McCrudden does, however, identify a weakness of this proportionality analysis: its subjectivity. Steps one and three require subjective judgement in determining first, whether the restriction on dignity furthers a legitimate aim and second, whether the benefits of this restriction outweigh its harms (715-716). The dangers of such subjectivity are significant. Samuel Moyn goes so far as to say that dignity's lack of a clear definition obscures foundational political divergences and perpetuates redundant political dialogues, threatening democratic legitimacy overall (68). For example, the subjective conception of dignity for anti-abortionists can come into direct conflict with the subjective conception of dignity for pro-abortionists, which then confuses and stagnates any dialogue between the two sides since the core term, dignity, is employed by both.

However, the subjectivity of this dignity mechanism can be reinterpreted as a strength, since judicial interpretation is a key component of democracy. One of the main responsibilities of judges is to navigate the complexity and unpredictability of reality, which written legislation is highly unequipped to do. Moreover, the dignity mechanism's use of proportionality analysis cuts the excess confusion and stagnation in political deliberation that Moyn is concerned with, as it reveals how judges make their decisions and what they prioritize (i.e. if they prioritize life or autonomy, they must concede to doing so instead of hiding behind vague, rhetorically powerful terminology). Moreover, the explication of their judgement and decisions to champion or overrule certain dignities must be substantiated, thereby forcing judges to confront difficult questions such as the moral status of an unborn fetus.

Réaume's aforementioned criticisms of the dignity of autonomy can also be handled with this method. Her assertion that dignity-language can be manipulated by political authorities to shirk accountability for the existence of autonomy-stunting environments is largely circumvented by the proportionality analysis as the clear explication of a judge's decision would make such avoidance of accountability difficult to conceal. Furthermore, the protection of certain groups from being portrayed as unworthy of autonomy is ensured by the dignity of reputation.

With the mechanism and its parts now sketched, this paper will apply this methodology to two general cases in bioethics: abortion and euthanasia.

The first course of action in employing the new dignity mechanism is to identify all the affected dignities. In the case of abortion, there are four instantiations and three types of dignity: the dignity of the woman's life, the dignity of her autonomy, the dignity of her reputation, and the dignity of the unborn fetus' life. The dignity of the fetus is controversial as it hinges on whether one believes unborn fetuses are worthy of moral personhood. The fetus might also have an additional dignity of potential autonomy as a genetic member of the human species. However, this dignity is, at best, a dignity for potential autonomy and not the higher-level dignity for actual autonomy. If a judge should decide to rule in favour of abortion, they would have to present an argument for why the fetus' dignities can rightfully be overruled by the dignities of the woman, an argument which would most likely assert that moral status of the fetus is not strong enough to warrant a restriction on the pregnant woman's autonomy. Importantly, this methodology forces the judge to substantiate their answer by facing relevant moral questions about the moral personhood of the fetus, bypassing Moyn's general concern that the subjectivity of dignity threatens democratic legitimacy by blanketing important ethical debates.

In the case of euthanasia, there are only two dignities at hand: the patient's dignity of autonomy and humanity's dignity of reputation. It might be noted that it is at this juncture that Mill's liberty, which Davis identifies as most closely related to the modern notion of autonomy, forbids suicide on the grounds that it significantly undermines one's future ability to be autonomous (Mill V, 11). However, if a patient's death is imminent regardless, and the intention of euthanasia is not to kill a patient but to ease their suffering or alleviate unnecessary financial burden, euthanasia would seem to be consistent with Mill's ideals. The dignity of autonomy, then, takes precedence over the dignity of humanity's reputation so long as the adjudicator finds the restriction of the dignity of reputation to be justified by the aim of protecting individual autonomy. Some may reject this conclusion, asserting that dignity-language in euthanasia, particularly the phrase "die with dignity", implies that patients are escaping a state of indignity. This, in turn, leads to the discrimination against and humiliation of disabled persons with conditions that would, if inflicted on a non-disabled person, constitute a reasonable case for euthanasia (Jones 531). This objection, however, revolves around a differing definition of euthanasia. If euthanasia is only applied when biological death is imminent, whether or not the patient is euthanized, the circumstances are drastically different-the indignity is no longer in the state of disability but in the state of being unable to determine one's final living days.

Beyond the field of bioethics, it is ultimately incumbent upon a society to accept the reality of its political situation. With the exponential number of complicating externalities, a rise attributed to the continued developments of technology and globalization, most modern liberal democracies have strayed from the theoretical purity of modern liberalism. Most paternalistic laws, such as laws requiring seatbelts, are inconsistent with the autonomy-enabling theory of Mill's harm principle. Any outcry that a government should not enforce some conception of a good life is failing to acknowledge that, in the ever-more-complicated contexts of modern lives, some rendition of certain moral ideas is already being enforced by government. To assert that morality does not belong in law is to reject not only dignity, but also many staples of modern legislatures, including the aforementioned paternalistic laws. Once morality enters law, the main conflict between the two is that moral laws allow for significantly more flexibility than criminal laws.

The use of dignity, as a portal where morality can enter the law, embodies this conflict (Habermas 469). The use of dignity is usually intended as an overruling exception to regular action by stating that certain legal actions should be overruled because of dignity reasons. However, when dignity is present at both ends of a debate, as is often the case in certain bioethics discourses, the conversation becomes much more convoluted and, arguably, unproductive. This paper has considered multiple concerns about dignity's involvement in bioethics that revolved around the subjectivity of dignity's interpretation, its potential uselessness, and its potential effect of obscuring important political deliberation in favour of the vague rhetorical employment of dignity. This paper then defended the position that dignity belongs in bioethics policies and discussions, asserting that the deliberated concerns can be ameliorated by a proportionality analysis that 1) preserves the moral and emotional impact of dignity, 2) identifies all relevant dignities so as to prevent confusion about which extensions of the term are being considered, and 3) explicitly substantiates decisions to champion some dignities over others (in addition to addressing, instead of obscuring, certain complex questions such as the moral personhood of a fetus). With this methodology, dignity-language not only serves a constructive purpose in bioethics dialogue, but also provides the flexibility necessary for the integration of moral ideas into law.

Works Cited

Caulfield, Timothy, and Roger Brownsword. "Human Dignity: A Guide to Policy Making in the Biotechnology Era?" Nature Reviews Genetics, vol. 7, no. 1, 2005.

Davis, F. Daniel, "Human Dignity and Respect for Persons: A Historical Perspective on Public Bioethics". 2008

Habermas, Jürgen. "The Concept Of Human Dignity And The Realistic Utopia Of Human Rights." Metaphilosophy, vol. 41, no. 4, 2010.

Illies, Christian. "The Threefold Challenge of Darwinism to an Ethics of Human Dignity." The Cambridge Handbook of Human Dignity, 2014.

Jones, David Albert. "Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?" Understanding Human Dignity, 2013.

Macklin, Ruth. "Dignity Is a Useless Concept." BMJ, vol. 327, no. 7429, 18 Dec. 2003.

McCrudden, Christopher. "Human Dignity and Judicial Interpretation of Human Rights." European Journal of International Law, vol. 19, no. 4, 2008.

Mill, John Stuart. On Liberty. Edited by Leonard Kahn, Broadview Press, 2015.

Moyn, Samuel. "The Secret History of Constitutional Dignity." Yale Human Rights and Development Journal, vol. 17, no. 1, ser. 2, 2014. 2.

Pinker, Steven. "The Stupidity of Dignity." The New Republic, 28 May 2008.

Réaume, Denise. "Dignity, Choice, and Circumstances." Understanding Human Dignity, 2013.

Rosen, Michael. Dignity: Its History and Meaning. Harvard University Press, 2012.

Siegel, Reva. "Dignity and the Duty to Protect Unborn Life." Understanding Human Dignity, 2013.

Waldron, J. "Dignity, Right and Rank." University of California, Berkeley, 2009, Lecture.