The Austrian Bioethics Commission: claims, legitimacy and practices 2

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1 Erich Griessler 1 The Austrian Bioethics Commission: claims, legitimacy and practices 2 Current technological and scientific developments have both tremendous potentials and severe risks and often also raise a number of fundamental ethical questions. Biomedical research (e.g. stem cell research, cloning), information technology (e.g. data protection issues) and nuclear technology (e.g. nuclear safety) are well known and regularly quoted examples for that. Thus far-reaching scientific developments also challenge the political decision-making mechanisms of democratic societies. The issues at stake in this context are: who can legitimately decide on these topics and which procedures are adequate? One way to deal with decision- and decision making problems is to call for expert advice. According to this concept, experts, either in science or ethics, should validate the ethical implications and consequences of new technologies and scientific developments and advise governments or international bodies on measures to react on or to steer scientific development. 3 In 2001 the Austrian Government, rather late in international comparison, installed an advisory body on bioethics, the so-called Austrian Biotechnology Commission 4 (in the following commission). Unlike the already existing, hospital-based Austrian bioethics committees, which focus on clinical research, this commission advises the Austrian government how to deal with bioethics issues in principle. In the first year the commission issued three recommendations: one on the European biomedicine convention, a second on guidelines for bio-patenting and a third on the Austrian position towards funding of stem cell research within the European Community s 6 th Framework Programme. From a social scientist s perspective the formation of expert commissions on ethics of scientific and technological development raises several questions: What do these commissions and their members claim to achieve? How do they substantiate their competency on this matter? Do the deliberative practices within such commissions match up with their claims? Starting from these questions the Institute for Advanced Studies carried out a research project starting in spring In this project we interviewed almost all members of the commission. 6 This paper presents first results of this still ongoing research project. 1 Institute for Advanced Studies, Vienna. Contact: erich.griessler@ihs.ac.at. 2 Please do not quote this paper without the author s prior consent. 3 E.g. the Danish Council of Ethics, and the Group on Ethics in Science and Technology at the European Commission. 4 For an overview on the commission by one of its members and the head of the commission s administrative support unit c.f.: Gmeiner, R., Körtner, U.H.J. (2002): Die Bioethikkommission beim Bundeskanzleramt Aufgaben, Arbeitsweise, Bedeutung. Recht der Medizin, 2002/06, pp I want to thank the Austrian National Bank (Project No: 9607) and the City of Vienna (MA 7 Kultur, Wissenschafts- und Forschungsförderung) for the funding of this research project.

2 In the first part of the paper I will shortly describe the Austrian bioethics commission, its tasks, composition and claims. In the second part I will analyse its claims of legitimacy. In the third section I will analyse selected aspects of its practical work of discussing bioethics. I will particularly focus on the question whether the commission s practice can live up against its claims. The commission: composition and claims In this part I want to describe the commission, its tasks as well as its place within the Austrian political formation. These points are important because they already involve central legitimacy claims, which are contested by the commissions opponents. Let me first describe the commission s tasks. According to the governmental announcement 7 from June, 29 th 2001 the commission shall advise the Federal Chancellor, the head of the Austrian government, from an ethical perspective in all social, scientific and legal questions, which stem from the scientific development of human medicine and human biology. These tasks include in particular: (1) The commission shall inform society about important discoveries of human medicine and human biology and the ethical questions that are related to these discoveries. Furthermore, the commission shall promote discussion in society about these questions. (2) The commission ought to report practical recommendations. (3) It shall suggest the necessary legal measures and (4) prepare reports for particular questions. In the years 2001 and 2002 the commission concentrated its activities exclusively on recommendations to the chancellor how to deal appropriately with issues of biomedicine and biotechnology. Who are the members of the commission? The respective governmental regulation defines that the number of commission members ranges from a minimum of 15 to a maximum of 25 participants. According to the governmental announcement the commission shall involve experts from human medicine (gynaecology, psychiatry, oncology, pathology), molecular biology and genetics, law, sociology, philosophy and theology. 8 The concept of expert is not explained in the governmental announcement but it can be assumed that expertise combines status via academic position and research experience. At present the commission involves in total 19 members, eight medical doctor, two molecular biologists, two theologians, two philosophers, two sociologists, two jurists and, not foreseen in the governmental announcement, one industry representative. Thus, the commission is clearly an expert committee; it strives for full representation of expert knowledge but it not for representativeness of important social groups. 6 I express my gratitude to all members of the Austrian Bioethics Commission who openly discussed their experiences in the commission with us. I particularly want to thank my colleague Alexander Bogner who cooperated with me in doing the interviews. 7 Bundesgesetzblatt für die Republik Österreich, Jahrgang 2001, Ausgegeben am 29. Juni 2001, 226. Verordnung: Einsetzung einer Bioethikkommission. 8 Ibd. 3

3 Who is the addressee of the commission? The commission was established on the Austrian chancellor's personal initiative. This is important to notice since international examples show that there are alternatives to locate such a body, e.g. as parliamentary advisory commission. 9 Because of to the political situation in Austria after the year 2000 the locality of the commission is an important factor for its legitimacy. In this year, after 16 years of coalition governments between social democrats and conservatives, the conservative Peoples Party and the right-wing Freedom Party formed a centre/right-wing government. This coalition, which was heavily disputed in Austria and abroad, meant a departure from concordance, the prevailing post World War II concept of Austrian polity, to more open and intense political conflicts. Setting up the commission as personal advisory committee of the chancellor and not as parliamentary advisory commission also meant to exclude the opposition parties from influence. To summarize, the commission was set up in Austria in a time of profound political conflicts between the centre/right-wing government and the left-wing opposition. It was put together as advisory body solely to the Austrian executive. Furthermore, it was set up as expert group and acted so far primarily as an advisory body to the chancellor. Beside media contact there was comparatively little activity from the commission in public information and discussion on these topics. Legitimacy Having said something about the political position, the tasks and the composition of the commission I would like to raise the question on which legitimacy claims the commission rests. Commission members refer to several sources of legitimacy. Naturally, there is the commission s legality, which means that it is within the legal competencies of each minister including the chancellor to summon an advisory body. 10 However, the commission s primary legitimacy claim is based on its members expert-status. Based on their expert authority they define the commission as a body in which specialists from various research fields are weighing the ethical pro and cons in a quasi-judicial position. Some members of the commission perceive this idea of an expert commission in contrast to a body that represents the various social interest groups, such as political parties and NGOs. In contrast to that some members see the commission as body of autonomous experts who are only responsible to their own conscience. This claim of expertise as base for legitimacy is extremely well described by one commission member: Ich vertrete niemanden, ich habe natürlich meine privaten Kontakte zu verschiedenen gesellschaftlichen Gruppierungen, aber ich fühle mich frei davon jetzt Jemandes Interesse vertreten zu müssen, und das ist mir sehr wichtig. (...) Das heißt nicht, das ich... ich glaube es ist sehr wichtig, die verschiedensten Betroffenen-Standpunkte anzuhören in einer solchen 9 In contrast to the Austrian commission the Enquete Kommission at the German Bundestag Recht und Ethik der modernen Medizin was located at the German parliament. 10 Bundesgesetzblatt Nr76/1986 idf Bundesgesetzblatt I 2000/141 quoted by Gmeiner/ Körtner 2002, c.f. Footnote 4

4 Kommission, also das halte ich für enorm wichtig... Also ich muss mich kundig machen, was sind die Perspektiven der unterschiedlichsten betroffenen Gruppierungen, aber letztlich muss ich frei sein, mit diesen Informationen dann zu entscheiden, was halte ich für gut und richtig. Die Kommission soll aus Mitgliedern bestehen, die ganz unabhängige Personen sind unabhängig in dem Sinne, dass das Personen sind, die sich nicht als Interessensvertreter verstehen. Weil ich habe damals, und das mache ich vielleicht heute noch, einen Unterschied gemacht zwischen Kommissionen in denen eben unterschiedliche Gruppierungen, gesellschaftliche Gruppierungen ihre Interessen vertreten lassen und vertreten sehen, und solchen die Expertenkommissionen (sind), die unabhängig als Personen nach ihrem Gewissen, ihrem besten Wissen urteilen. Und den Unterschied möchte ich eigentlich immer noch aufrecht erhalten. Another important element in the self-description of the commission is its autonomy versus political decisions. Although appointed by the chancellor, the members stress their autonomy versus political decision-making and their role as group of experts counselling the chancellor. This self-description as expert committee, independent of the political process also involves that the commission members accept that policy is free to follow their advice or not. To summarize, the legitimacy of the commission rests not only on its legality conveyed by political power but especially on the claim of expert advice. As an ideal type experts in their own view should give their ethical opinion only after carefully and objectively weighing pros and cons and listening to concerned social actors. In their judgement experts should be free from political influence, either from their political client or groups within society. After thorough work in the commission they are only responsible in their judgement to their own conscience. Practice In the next part of the paper I want to show, that these highly idealized claims of expert advise are not only contested in the media but are also not fully in accord with the reality of the commission s practice. As mentioned above, impartiality is a central element of experts legitimacy claims. On a rather straightforward level it is quite easy to cast doubt on this claim because the composition of the commission was a matter of public debate in the media. Firstly, it was the chancellor himself who appointed the commission members and it was not clear to outsiders and even for several commission members on which criteria and basis they were selected. Several commission members said that they hesitated to accept their appointment because they did not want to give the impression that they acted as a cover for the centre/right-wing government. This shows that the selection of the commission also had a political connotation. Furthermore, the commission s chairperson was appointed in advance, prior to all other commission members. Not only some Austrian media criticised this action but also a number of commission members said they were surprised and displeasured because of that. The issue of interest conflicts, which undermines the impartiality claim, is another inconsistency between the commission s practice and the ideal type of expert advice. One issue in this respect is the participation of an industry representative in the commission. Another issue in this line is the question whether catholic theologians are free in their

5 judgement from their churches. A third, and even more fundamental question relates to the questions of interests of the researchers. This means not only potential financial interest conflicts of scientists who are also running research institutes but more general researchers interests in carrying out their studies. Can researchers in principal be impartial given these interests? However, in contrast to other social groups, not only are they represented in the commission, they also are in the majority. In context of the dilemma of participation versus expert advice is also worth noticing that several commission members in addition to their professional expert role want to add a woman s perspective to the commission s, which should emphasise women s role as object of biomedicine and their subsequently special focus on bioethics. These efforts mark a break between the legitimacy claim of expertise and the demand for representation of neglected perspectives. However, I would argue it conflicts with the self imposed concept of professional expertise and the exclusion of participation implicit therein. In my view it is at least debatable whether the coincidence of professional expertise and gender is sufficient to qualify a commission member as expert on women s issues. Moreover, this blurring the boundaries between participation and professional expertise in one issue raises the question why not also other social groups are involved in the commission. The points of critique I presented so far are rooted in the political sphere and relate to the extremely important questions of public participation as well as appropriate selection and fair composition of the commission. 11 On a more fundamental level of critique I would like to raise the following questions: What do commission members mean by ethics? Who in their opinion is capable of ethical decisions? How can decisions on ethics been made? How were the decisions in the commission made? In the context of the definition of ethics several commission members draw a meaningful line between moral and ethics. Whereas they consider moral as an everyday concept of common decency, of what is good and bad, right or wrong, ethics in contrast is the critical analysis of moral. Thus according to one commission member the task of an ethic commission would be to critically analyse moral thinking. Although bioethics needs accurate and comprehensive scientific information, the ethical reflection of science is not exhausted by science and is not restricted to scientific experts. It is interesting to notice that the chancellor, although he summoned an expert commission, pointed out at the 1. Austrian Bioethics Conference on in July 2001 that everybody had to carry out ethical reflections on bioethics. It is clear we can never shift the responsibility on study groups or bio ethics committees everybody is an expert in this matter 12 Also members of the commission indicate that the ethical reflection is not bound to scientific expert 11 For reasons of brevity it is not possible to analyse the role of real, imagined and/or insinuated interventions into the commission as well as the use of the commission s resolutions by polity. 12 quoted by Gmeiner/ Körtner 2002, c.f. Footnote 4

6 knowledge but is open to everybody. A quotation from a commission member exemplifies this standpoint. Weil die Naturwissenschaftler dort (ohnehin) keine Rolle spielen in der Hinsicht, dass, wenn es um ethische Fragen geht, ja das wissenschaftliche eh nicht relevant ist. (...) Weil ich finde, für die Fragen, die wir behandeln, ist die Wissenschaft ja irrelevant. Finde ich, ja? Man kann auch sagen, okay, also da ist eine bestimmte Zelle, und das kann man mit der machen. Ja. Aber das ist nicht die ethische Frage. Das ist nicht das, was uns interessiert. Dann geht es... soll man das machen? Also was hat das für Folgen? Aber nicht wissenschaftlich, sondern eben für die Betroffenen. Was hat das für Konsequenzen? Das ist dann das Ethische (P 13). Thus, also according to another commission member, it would be necessary to combine two competencies, scientific knowledge and philosophical skills. In his view it isn t the philosopher s tasks in the context of the commission to take a superior attitude towards the scientist but to help him/her to reach and keep a high standard of philosophical argumentation. Jeder Mediziner ist ja, wenn ich so sagen will, von der Sache her genötigt, auch über das nachzudenken, was er macht. Eines ist es, jemanden ein Herz zu transplantieren. Etwas anderes ist es, darüber nachzudenken, was ich als Mediziner in meiner praktischen Wissenschaft tue. Diese Reflexion auf mein wissenschaftliches Handeln ist eine philosophische Reflexion. Und eigentlich ist jeder Mediziner gehalten, dass er in Personalunion zwei (...) zwei Dimensionen verkörpert. Erst der Fachmann, aber eigentlich ist er auch gehalten, sich über die, wenn Sie wollen ethische Vertretbarkeit gewisser Handlungen klar zu werden. Das aber ist von der Natur der Sache eine philosophischethische Reflexion. Nun, nicht jeder ist in dem geübt. Der Philosoph ist geübt. Und die Aufgabe des Philosophen ist nicht die Besserwisserei, sondern die Aufgabe des Philosophen ist es, für das entsprechend hohe Argumentationsniveau seiner Gesprächspartner zu sorgen, den Partner aufmerksam zu machen. Du oder Sie, schauen Sie, das ist noch zu berücksichtigen. Diesen Gesichtspunkt müssen Sie einbringen. Also, das ist sozusagen eine bloße Hilfestellung bei der Findung. Ja? The necessity to combine scientific expertise with systematic ethical reflection shifts the focus of the question about the legitimacy of bioethics commission from appropriate composition and participation to the question of appropriate procedure. Bioethics commissions in this sense provide potentially the distinctive chance to bring together scientists with expert knowledge and philosophers as well as theologians used to systematic ethical reflection. In the last step of my argument I would like to investigate whether the commission provides the space for such systematic ethical reflection. Most commission members criticize that the commission is under pressure of time. This pressure of time has three main sources. Firstly, it is politicians who asked the commission for their advice on urgent political questions, such as the position towards research funding in the Framework programme. Secondly, the commission members participate in the committee in addition to their usual duties as researchers, university teachers and physicians. Thus this honorary task is an extra duty they often don t have the time for. Thirdly, the commission only meets once in a month for three hours. However, in addition to that the commission appoints sub-commissions when necessary which meet more informally and often. Nevertheless, most commission members

7 criticise the lack of time for discussion. A number of commission members were unhappy that this lack of time often does not allow for substantial and fundamental debate. 13 In this situation the commission had to find less time consuming and seemingly more efficient ways of producing statements. The chosen strategy was to delegate the co-ordination of particular resolutions to individual commission members who were particularly acquainted with the topic 14 and to focus work on the development of texts. Although this method was clearly capable of producing texts more quickly, it did not provide enough time for fundamental discussion particularly when conflict in the commission was predictable as it was the case in stem cell research. 15 The defender of this method of working argued that the pro and cons were already clear from international stem cell research debate and that it was unlikely that the Austrian commission would produce any new results. Nevertheless, the textoriented mode of operation did not allow for a fundamental discussion of pro and cons and thus for the development of a common frame of reference. According to a commission member such fundamental discussion occurred only at the very end of the process when a vote was taken on the resolution. Conclusion My argument is not that the Austrian bioethics commission failed to do its job but that the underlying concept of expert advice is inadequate. Firstly the composition of the advisory body is unclear and naturally not only guided by considerations in content but also political ones. Secondly, the analytical line between impartial experts and partisan social groups is not easy to uphold and to control given essential financial and/or research interests and dependencies of some of commission members. Moreover, experts also have other roles than their professional ones; they are also e.g. man/woman, father/mother, husband/wife, and employees. It can be assumed that these roles also influence their decisions, particularly if they remain implicit and are not questioned by systematic investigation. Thirdly, ethical reflection is not necessarily based on professional scientific expertise but on systematic reflection almost all responsible adults are capable of. This argument calls the expert approach in ethical debates fundamentally into question. Consequently, the question of the bioethics committee is not only one of proper and fair composition and participation but also one of an appropriate procedure, which allows for systematic investigation of a ethical problem. Given the existing time and financial restrictions the current practice of the Austrian 13 Some commission members pointed out that women issues and questions of social ethics were neglected in the commission so far. This brings up the interesting question in which way the commission s group dynamics (e.g. dominance of certain members) influences its results. 14 This again caused interest conflicts for a commission member in the case of bio patenting. Although the commission member indicated his interest conflicts because he held bio patents the commission decided to entrust him with the coordination of this topic. 15 Two of the three resolutions produced so far were unanimous. In the case of research funding of stem cell research within the European Framework Programme eleven members voted pro (under certain conditions) and eight against the funding of this line of research.

8 Bioethics Commission so far does not allow in a sufficient manner for this systematic deliberative reflection and thus fails to fully exploit the potentials of this commission.