Destruction, Creation and Immortality: Discourse, Public Policy and Nascent Human Life
Bridget Theresa Doherty
School of Government
University of Tasmania
This paper examines how competing discourses shape Australian policy outcomes in three contentious policy arenas;
; assisted reproductive technology (ART)
; embryonic stem cell (ESC) research and cloning
Each arena can be characterised by a number of different policy dimensions. In each, unresolved debates over the status of nascent human beings give a distinct bioethical dimension. Further the arenas share a health and welfare dimension with particular implications for women and reproduction, a science and technology dimension where innovations result in new public policy issues and there is an intergovernmental dimension. In the case of ESC/cloning there is an additional global dimension.
These policy arenas can be conceptualised as forming a continuum of complexity. With each subsequent case, new and important actors enter the fray. New coalitions form and policy decisions impact on an ever wider range of stakeholders. These policy issues lend themselves to a number of traditional policy analyses. Distinct policy communities and policy networks can be identified (Rhodes 1997, Pross 1986, Jordan, 1990, Atkinson and Coleman, 1992, Kingdon 2003), advocacy coalitions (Sabatier, 1986) and epistemic communities (Haas, 1992) are clearly present and there are common actors in each arena. Traditional analyses presuppose a rational solution to conflicts in need of „normative
regulation‟ (Habermas 2003, 38) but the bioethical dimension of these particular policy arenas make the emergent issues an unlikely project for purely rational analysis.
However it is the instrumental, rational policy process which must engage with and make decisions on contested policy problems. Thus the emergent issues must be defined and constructed in ways which make them more amenable to such processes. In these three cases, the critical bioethical conflicts get reconstructed as health and welfare issues, science and technology issues and economic issues. I argue it is analytically useful to think of this in terms of competing discourses and that specific policy outcomes can be explained by the emergence and dominance of a particular discourse within the different policy dimensions. I will also argue that in the case of ESC/cloning the dominant discourse does not so much defeat and discard its competitors but uses them as ethical and political resources for its own end. They are in fact a necessary condition for success
as the policy process struggles to keep up with the new and complex dilemmas the biotechnology explosion brings onto the political agenda.
Policy Dimensions and Competing Discourses
Within the policy dimensions, different discourses shape and construct understandings of the salient issues and this in turn impacts on the policy response. In the case of abortion competing bioethical and health and welfare discourses are clearly identified. In ART, science and technology discourses are added to the mix and with ESC/Cloning there is an additional distinct global economic discourse at play. All of these discourses are played out within the intergovernmental framework which typifies social policy making in the Australian Federal system.
The Bioethical Dimension
The realm of bioethics encompasses law, theology, social science and philosophy Campbell (2005, 88). As the ethical dilemmas posed by biotechnology become ever more complex, they move beyond the clinical and the individual, the realm of „scientific
medicine‟ (Campbell 2005, 88) or fact, and into the ambiguous and contested arena of values. As biotechnology continues to unlock knowledge about the human biological entity, once irrefutable truths about the human condition are themselves disputed and new „truths‟ emerge which reshape values and understandings of what it means to be human and how this positions us in the social and political world of rights and responsibilities.
Biological „fact‟ shows that the individual human being forms a continuum from fertilisation through implantation through blastocyst to embryo to foetus to neonate even if the sequence is interrupted through technological innovations like IVF or the suspended animation of the frozen embryo.
The moral status of the nascent human being also forms a continuum; from full moral status, the pro life position through to no intrinsic moral status at all prior to birth, the pro
life‟ lies at one end of the spectrum and choice position (Beyleveld 2000, 59). Human „
the fully human „person‟ at the others. Mieth (2000, 5) says the distinction between human „life‟ and „person‟ creates the notion of the human non-person who is not a
member of the moral community therefore not entitled to its privileges‟. Therefore how
the human entity is constructed at different developmental stages defines its place and value in the embedded network of human social relations and what is permissible in our behaviour toward it.
The Health and Welfare Dimension
The traditional or medical discourse of health focuses on the treatment of disease and disability. Health policy is concerned with provision of and access to services, which services to fund and who should receive them. Health policy making is dependent on expert knowledge and increasingly on „scientific‟ evidence of effective practice. With
advances in biotechnology and genetics, the legitimacy of technological scientific discourse in human health becomes ever more pronounced (Habermas 2003, 46). Within a traditional health model, actors are constructed as patients and others; doctors, nurses and health professionals, administrators, funders and there is a wide power differential between the experts who are the keepers and interpreters of medical knowledge and the recipients of this expertise.
1. In this Social health models present an alternative understanding of health and welfarediscourse, health is multi causal and the result of interaction between biological and genetic factors, environmental factors and social and economic factors (AIHW 2002, 4). The concept of wellness or positive health dominates and this goes beyond physical wellness. Further the idea of patient is replaced by that of active partner in health decisions and choices. This is still an instrumental rationalist model of health but expertise and to some extent power is now disaggregated allowing a wider range of actors a legitimate voice in policy making. Disability is a related issue which cannot be 2discussed fully here. Medical models of health see disability in terms of amenability to treatment and likelihood of cure for an individual whereas social models are more likely to focus on enhancing the capabilities of the disabled by dismantling social and environmental barriers to wellness.
A specific subset of the social health model is the women‟s health movement (WHM). It
is underpinned by the idea that if women cannot control their bodies, they cannot control their lives (Wass 1992, Pringle 1998) and takes a particular interest in the „medicalisation‟ of women‟s lives specifically fertility and the perception of women‟s
health as embodied in reproduction. The WHM criticises traditional health models as reinforcing stereotyped power relationships between men and women (VWHPWP 1985).
Science and Technology Dimension
Science and its junior partner, technology could be termed the meta discourse of modernity. It is through science and its methods that man controls nature (O‟Hear, 1989, 311) his world and his life. There are a number of discourses of science but this
discussion will be limited to
; Empirical discourse
; Post positivist discourse
; Feminist scientific discourses
1 United Nations Alma Ata declaration of the principles of Primary Health Care (1978) http://www.who.int/hpr/NPH/docs/declaration_almaata.pdf
Ottawa Charter for health promotion which emphasized the need for health consumers to be part of the policy making process. (1986) 2 See Goggin and Newell 2002 3 Baringer (2001, 10) identifies western, Chinese, Indian, Islamic, post colonial, ethnic, gendered, rational and romantic readings of science.
The dominant discourse within science is that of empiricism where knowledge generated through scientific method has a special status as objective fact. O‟Hear (1989) describes 4. Objective knowledge scientific method as a stepwise ascent from observation to theory
or truth exists which can be accessed through the application of reason embodied in science (Baringer, 2001, 10). The post positivist challenge argues science as a human endeavour can never be truly objective and observations are shaped and constructed by the paradigms in which science works. When these paradigms shift, what once was truth is seen to be false. The implication is that scientific truths are not absolute but relative to 5our understandings of nature at a particular point in history.
Longino (1996, 271) summarises challenges to the dominant discourse as taking two main forms. The first claim is that observations are theory laden therefore never truly objective. The second challenges the stability of „evidential relations‟ claiming they are relevant within a particular set of assumptions therefore if the assumptions change the legitimacy of the evidence can change. For Longino (1996, 273) the answer to these dilemmas is a critical dialogue in science which exposes the assumptions that are otherwise invisible to the scientific community. Thus scientific knowledge emerges from the engagement and exchanges between individuals and groups holding different views.
6Challenges to traditional science have also come from feminist philosophers who
enquire into the epistemological, ontological and social assumptions of science with the particular focus on how these reproduce subordination of women.
Despite these challenges empirical models continue to dominate scientific knowledge and the generators of that knowledge, scientists, are afforded special privilege. Litfen (1994, 29) says the belief in the power of science to improve human life remains „…a
quintessential hallmark of modernity‟. Mieth (2001, 1) adds that within a democratic
society there now exists an „irreversible contract‟ between science, technology and economics and the scientist can become the „expert‟ for all types of knowledge including what is right and proper for society. He describes the scientific dilemma „… as wanting to
both serve knowledge itself and to be socially useful‟ and in fulfilling the second
requirement, science enters into a „covenant with society‟ (Mieth, 2000, 1).
However the direction of research and the application of new knowledge generated by science are social issues. They are „…bound up with social questions of trust, governance,
democracy and public value‟ (Wilsden et al 2005, 22). This gives scientists „…a
responsibility to serve as guides in separating out scientific and technological solutions which are truly life enhancing from those which are not‟ (Cavalieri, 1981, 230).
4The scientist observes a phenomenon objectively, collects and collates data about that phenomenon, hypothesizes cause and effect, tests the hypothesis against the evidence and establishes a theory which explains the phenomenon. The theory is true until some new evidence refutes it. 5 See discussion on Kuhnian relativism in O‟Hear 1989, Chapter 4. 6 See Ettore et al (2006).
O‟Hear (1998, 219-20) argues that scientific research and new technologies have an „evolutionary‟ nature which results in uncertainty. It is both difficult to predict the impact of technological innovations in advance and attempts to control and direct technology are futile. This in turn places a responsibility on free and equal citizens to resist the idea of the „technological imperative‟, which asserts the preeminence of objective scientific
knowledge over „the ordinary person‟s sense of power over his own life‟ (Packard, cited
Koski 2005, 268). What is needed is a critical faculty for assessing and accepting innovation (O‟Hear, 1989, 223) or as Cavalieri (1981, 22) argues, demystification of science and revaluation of social goals by those exposed to their consequences.
The Global Dimension
If science and technology was the meta discourse of modernity, globalism is surely the thst century and early 21 century. Globalisation is „… the meta discourse of the late 20
growing interdependence of the world‟s people….‟ integrating not just the economy but
culture, technology and governance (UNDP 1999, 1). Mohan (2000, 121) sees this as a „…profoundly political process….‟, and as a discourse of „…there is no alternative…‟
which „…robs individuals and collectives of their power of self determination.‟
Globalism, as an economic phenomenon, stresses the increasing interdependence of economic entities on an international scale which shifts power away from sovereign states and governments. The global market shaped by powerful corporate interests directs movements of capital, labour, production and consumption in the desire for greater profits. For sovereign states this has implications for „competitiveness‟ of the national economy and imperatives to strategically support industries that both attract investment of transnational capital and produce new sources of economic growth (Barry and Patterson, 2004, 779) .
The juxtaposition of globalism with expanding technology and knowledge based industries such as biotechnology has serious implications. Global industries look for the best returns on their investments and as the costs of research grow, science seeks new partnerships with industry but corporate funding directs research toward more marketable projects (Wilsden et al, 2005, 2). Science and scientists get caught up in this cycle and they too must serve the new master- global economics.
The Intergovernmental Dimension
In 21st century Australia, the dominant discourses of contemporary government and policy making are responsible economic management, international competitiveness and the national interest. The Australian Constitution formally allocates specific and finite powers to the Commonwealth government and the remaining unspecified responsibilities reside with the states. Within any federal system the national and sub national governments are both independent and interdependent to a lesser or greater degree across different policy arenas (Chapman 1990, 71). In Australia, as federation has evolved and
7, the lines between the formal the business of government becomes ever more complex
jurisdictions of Commonwealth and State blur, particularly in the social policy arenas (Galligan et al 1991, 3).
This creates a distinctly intergovernmental dimension to policy making which must bemanaged by specific intergovernmental institutions and processes. In the Australian context these include the Premiers Conferences, Council of Australian Governments (COAG) and Ministerial Councils in specific policy arenas.
The following section will briefly discuss the current state of public policy in each of the three policy arenas and how the different discourses have impacted on policy outcomes. Policy Outcomes and Competing Discourses
An estimated 100,000 abortions are performed each year in Australia, mostly on social rather than medical grounds (de Crespigny and Savulescu, 2004). The majority of 8Australians support a women‟s right to choose whether or not to continue a pregnancy
(Evans and Kelly, 2004 45-47) and to have access to safe, affordable abortion services. Provision of surgical abortion services is the jurisdictional responsibility of the individual states and territories but the Commonwealth Government plays a major role through such mechanisms as the Medicare Benefits Schedule (MBS), and the bilateral five year Health Care Agreements which fund public hospitals. Until recently, provision of medical abortion (RU468) was contingent on the authorization of the Commonwealth Minister for 9Health but has now moved under the aegis of the Therapeutic Goods Administration, 10the statutory body responsible for approval of medicines in Australia.
7 Sharman ( 1991, 31-2) suggests a number of explanations for growth of intergovernmental machinery during the 70s and 80s including growth of government itself, expansion of the Commonwealth Government into areas outside its formal jurisdiction and changes in administrative culture that emphasise efficient management of resources to achieve goals.
8 See Evans and Kelly 2004 for a full discussion. In summary Australians overwhelmingly support abortion for „catastrophic‟ events such as serious birth defects, danger to the mother‟s health or pregnancy
as the result of rape. There was majority support for „contraceptive‟ abortion in the case of poverty, limiting family size and unmarried women. Support for abortion in the case of minor birth defects or specific character traits are much lower and support for abortion for „eugenic‟ reasons is very low. These opinions were found to be stable over time. 9 RU486 belongs to a special category of drugs under the Therapeutic Goods Act 1989 known as „restricted
goods‟, which cannot be evaluated, registered, listed or imported without the written approval of the Minister for Health. 10 TGA is a statutory body set up under the Therapeutic Goods Act 1989 administered by the Minister for Health. Following a successful amendment, RU468 is now subject to the same evaluation processes as any other drug in Australia and therapeutic decisions are a matter for the woman and her health care provider. At present RU468 is not listed on the PBS schedule thus is not subsidised by the commonwealth government.
The women‟s movement in the early 1970s was largely responsible for placing reproductive choice, fertility control and abortion onto the public policy agenda (Dowse 1982, 328). At the same time women were becoming a salient political force and women‟s voice was being heard in government through the establishment of new
bureaucratic roles and policy machinery (Eisenstein, 1996, 19-23). By the end of the
seventies all states and territories had statutes which distinguished lawful from unlawful abortion and in legislative terms, this arena remains one of state/ territory responsibility alone. At present there is no overarching national legislation or regulatory framework governing abortion in Australia. De Crespigny and Savulescu (2004, 202) describes these current multiple state/territory laws as „confusing‟ and have made a case for
national and consistent laws which eliminate present legal „grey areas‟, particularly
where late termination of pregnancy (LTOP) is concerned.
A conspicuous feature of Australian abortion policy is that it sits legislatively within a 11, but operationally within in a health services framework. criminal justice framework
And it is possible here to again distinguish competing discourses. The pregnant woman is constructed as a patient/client or as a latent criminal. Similarly abortion providers are constructed as health service providers or potential criminals.
The central ethical dilemma for the abortion debate relates to the status and rights of the foetus versus the rights of the pregnant women. In terms of policy outcomes in Australia, „women‟s health‟ can be seen as the prevailing discourse. The pregnant woman‟s health
and wellbeing take precedence over the rights of the foetus. Only the pregnant woman has authority to permit or refuse an abortion and the law clearly distinguishes between the unborn and the new born child, even if they are at the same gestational age, allowing the former very limited legal rights which do not include an „enforceable‟ right to life (Skene,
2004, 408). Challenges in the Australian courts over the preceding thirty years have ultimately failed to restrict access to lawful abortion and prosecutions for unlawful abortion are rare.
Despite this, abortion is not available „on demand‟ to Australian women. In most
jurisdictions, access is contingent on assessment by medical practitioners and can only be performed by a medical practitioner. Further, with the exception of the ACT, abortion remains within the criminal code rather than the health or social policy framework
The ethical debate over abortion is not resolved. As Cica (1998) says the debate over abortion continues because „…different people have different views about which values
are offended or affirmed when a woman chooses abortion, …because these views are sometimes irreconcilable and often very strongly held...‟ When new policy issues such as regulation of RU468 and late termination of pregnancy emerge, the ethical debates around abortion re-emerge and the pro life lobby restates its position on protection of the foetus including its right to life. However to date they have had minimal impact on policy outcomes in Australia.
11 With the exception of the ACT which in removed abortion from criminal statutes in 2002.
For example, the controversies in Australia regarding both RU468 and LTOP are not on ethical grounds. In the former case, the issues are related to safety and access with the pregnant women‟s welfare foremost. In the latter case, the concerns focus on the
perceived ambiguity of current abortion laws and what constitutes a lawful abortion in different jurisdictions. This has implications for doctors performing late term abortions and for women accessing the services. Despite these ambiguities, to date there is no move by the commonwealth to intrude on state jurisdictions regarding regulation of abortion.
12 estimate one in six Australian couples suffers The Fertility Society of Australia (FSA)
from infertility. Causes are multiple, but usually of a physical nature and shared equally between men and women. Wang et al (2006, 6) report a total of 38,823 ART cycles undertaken in Australia in 2004 for women of reproductive age resulting in 7029 live births. It is difficult to accurately determine the number of women using services because current data collection systems are treatment cycle based rather than client based 13(ARTCR, 2006, 54). In Australia the vast majority of ART procedures used IVF or 14ICSI techniques. Donor embryos or oocytes are used for approximately 6% of these procedures (Wang et al 2006, 7).
Kovacs et al (2003, 536-7) report widespread support for ART and Medicare funding for infertile couples in Australia. Further, support for IVF, embryo donation and altruistic surrogacy for infertile couples have risen significantly in the 20 year period 1981 to 2001. Support for ART for single and lesbian women has also increased but from a much lower baseline (Kovacs et al 2003, 536-7).
As with abortion, in Australia, ART services come under state jurisdiction. Victoria, 15Western Australia and South Australia have specific legislation regulating ART and
New South Wales have a draft Assisted Reproductive Technology Bill 2003, not yet proclaimed. Queensland, ACT and Tasmania have legislation regarding surrogacy and the Northern Territory adheres to the South Australian guidelines, with some exceptions which restrict access by non-heterosexual couples and single women (Bell, 2006, 15). Victorian and South Australian laws restrict access to IVF treatment to women who are married or in a de facto relationship with a man. However these restrictions were invalidated by a federal court ruling in July 2000 which found the Victorian Fertility
Treatment Act, 1995 contravened Section 22 of the Sex Discrimination Act, 1975, which
prohibits discrimination in the provision of goods and services on the grounds of sex or marital status (ARTRC, 2006, 52). ART programmes may seek exemption from the
12 The Fertility Society of Australia is the peak body representing scientists, doctors, researchers, nurses, consumers and counsellors in reproductive medicine in Australia and New Zealand. http://www.fsa.au.com/ 13 Wang et al report In 2004, around 95% of ART procedures involved IVF or ICSI 14 Intracytoplasmic sperm injection (ICSI): an IVF procedure in which a single spermatozoon is injected
through the zona pellucida into the oocyte. The process increases the likelihood of fertilisation when there are abnormalities in the number, quality or function of the sperm ( ARTRC, 2006, 11)
15 Victoria (Infertility Treatment Act 1995), Western Australia (Human Reproductive Technology Act 1991 and the Amendment Act 1996) and South Australia (Reproductive Technology Act 1988).
Commonwealth Sex Discrimination Act (CSDA) by application to the Human Rights and Equal Opportunity Commission (Peterson 2005, 280).
State and territory legislation relating to the provision of ART services is underpinned by a national system of accreditation of individual fertility units by the Reproductive Technology Accreditation Committee (RTAC) of the FSA (ARTRC, 2006, 51). Those
states without specific ART legislation comply with the NHMRC Ethical Guidelines on Assisted Reproductive Technology (NHMRC 2004). These include a condition that ART services be provided with „„a serious regard for the long term welfare‟‟ of any children
who may be born as a result. Petersen (2005, 281) suggests this has been interpreted as a tacit endorsement of providing services to women in an „accepted family relationship‟.
While there is no federal government legislation in Australia to regulate reproductive technology, ART services are subject to provisions within:
• Health Insurance Act, 1973
• Research Involving Human Embryos Act, 2002 (ARTRC , 2006,51)
The Federal government introduced Medicare rebates for ART in 1990, initially with a limit of 6 cycles. In 2000, the six-cycle limit was removed and there is currently no regulatory limit or age limits for ART treatments. ART procedures are funded under both MBS and PBS and expenditure in both programs has increased substantially from 2003-1617. Prior to the introduction of the Extended Medicare Safety Net in 2004, out of 200518pocket expenses associated with ART were significant and this may have been a
limiting factor for women and couples with lower socioeconomic status (ARTRC 48). 19Medicare only covers eligible persons for clinically relevant services provided by
medical practitioners thus ART services are not covered for reasons of social infertility alone (ARTRC, 43).
Bioethical considerations in ART are more complex than in abortion because a new actor, the extra uterine embryo is introduced. The embryo can now live independently of a woman and it is purposively created. In ART, only those embryos judged „viable‟ are
considered suitable for implantation and this is a decision made in the laboratory based on objective criteria of quality of the embryo. There is a certain ambiguity about the
16 The ARTRC reports Medicare expenditure for ART treatment increased by 57%, from $50 million to $78.6 million from 2003-4 and by 38% to $108.4 million from 2004-5, this represents a 117% increase over two years. Similarly PBS expenditure for ART treatment increased by 18% from $37.1 million to $43.9 million 2003-4 and by 9% to $47.7 million 2004-5, a 29% increase over two years. For the six-year period, from 1 January 2000 to 31 December 2005, the Australian Government spent, via Medicare, $584.6 million on ART. 17 The extended Medicare Safety Net allows a rebate of 80% of out-of-pocket costs expenses in addition to the regular rebate, for out of hospital medical care once a threshold is reached in any one year. The threshold varies with on income and dependents.
http://www.health.gov.au/internet/wcms/publishing.nsf/Content/health-medicare-consumers-booklet1.htm 18 Bell 2006 reports between $1500.00 and $3000.00 per cycle after the Medicare rebate. Flinders Medical Centre patient information advises out of pocket expenses of $1800 for each IVF cycle and $2200 for ICSI which must be paid prior to treatment.19 clinically relevant service means necessary for the appropriate treatment of the patient to whom it is rendered ARTRC 2006
moral status of the ART embryo. It is both instrumentalised and commodified, rejected if it does not conform to quality standards, but simultaneously precious and valued, the pinnacle of hopes and desires for a child, by the infertile. Its value is not in itself but in its capacity to fulfill others‟ needs.
ART also brings into sharp focus, ethical issues surrounding the „right‟ to be a parent.
With IVF/ICSI the capacity to reproduce is separated from the sexual act of reproduction and this forces society to examine existing understandings of both parenthood and infertility. Infertility can now be constructed as social as well as medical. Lesbian and single women can claim social infertility as a result of being unpartnered or not sexually attracted to men.
IVF and attendant technologies have serious implications for women. Women bear the 20physical and emotional burdens associated with low IVF success rates, higher risks of
multiple and premature births and can become technologically dependent, trapped in a position of „infinite irresolution‟ (Kolleck 200, 148) where there is always a new 21technique to try .
Assisted reproductive technology policy in Australia is characterised by a virulent restatement of the medical model of health. Kolleck (2000, 144) claims „…the
combination of IVF and advanced screening techniques give biomedicine „….the power
to decide who is to bear children and which foetus is permitted to survive‟. Policy
statements and policy instruments clearly construct ART as „treatment‟ for clinically
demonstrated medical infertility with physicians best suited to determine clinically appropriate treatment. The object of treatment is a healthy, biologically related child. ART services fulfill this objective through the application of leading edge science and technology.
IVF technologies have clinical applications other than treating infertility. In combination with the technique of pre-implantation diagnosis (PID), couples at risk of producing a child with genetic defects, can be treated by screening out defective embryos prior to implantation. Implicit in the decision to undergo PID is the parental decision to implant or discard an embryo subject to diagnosis, to spare the defective child from the burden of a worthless life and the woman the trauma of an abortion if the abnormality was detected during pregnancy. Habermas (2003, 97) claims this freedom to dispose on the basis of scientific prognosis leads to an unavoidable intrumentalisation of the „prepersonal‟ human.
Heitman (1999, 24) says that infertility was a prime candidate for medicalisation when early researchers offered the possibility of technologic intervention to absolve the shame of childlessness. Medicalisation also delivers financial rewards to the medical researchers and clinicians who provide the services and to the pharmaceutical companies
20 Estimates of 15-20% chance of take home baby per embryo transfer. Get some contemporary OZ stats 21 ICSI allows men to genetically father their own children but existing genetic dysfunction may be transmitted, necessitating PID to select a suitable embryo. Further there are unresolved issues over the safety of the technique due to lack of adequate evaluation through controlled trials.