The 2003 Die Zeit article by the Roman Catholic philosopher Robert Spaemann that I am currently translating is quite long, so I thought I would break it up into a few smaller blog posts, of which this is the first. I have taken more liberties with the translation than usual, in order to make his meaning a bit clearer.
Spaemann’s article is a response to a lecture given by a German politician at the time, the then-Federal Minister of Justice Brigitte Zypries, who was arguing that it should be fine for scientists to use embryos generated in vitro (i.e. “test-tube babies”) for stem-cell research. “Use,” of course, is just a euphemism. To “use” such babies means to dismember and kill them, to take parts out of them like you might take parts out of an old car in a junkyard.
Spaemann disagrees with this, but in keeping with the adage my mother tried to impress on me to “give a compliment before criticizing,” he first notes a few points of hers that he finds agreeable.
“Freedom of Research or Protection of Embryos?”
Die Zeit article by Robert Spaemann, November 20,, 2003
Ms. Zypries held her lecture at a university, therefore at a place that dispenses one from the consideration of, at every moment, the possible political consequences of one’s words, a place that should not seek to enforce standpoints, but rather to find the truth. In doing so, only arguments should count—and interests, on the contrary, should count only indirectly: namely, as the subject-matter of arguments grounding their importance. Even societal taboos must be made to pass through this filter. They are suspended, as it were, but not eliminated, for arguments can even be given for their validity.
For what did Ms. Zypries make a case, and what were her arguments? With two of her points she defended the legal status quo, which is why in the public less was said about these points. She argued against embryonic screening (or more literally: “pre-implantation diagnosis”) and anonymous sperm donation. Her objections against embryonic screening were predominantly these: In contrast to prenatal diagnosis, embyronic screening is concerned with selection, with the decision about which human lives should be cultivated and which should not. In regard to this, it is sometimes said that disabled life should not be cultivated. If for 80% of Americans the genetic predisposition of the embryo to obesity is grounds for abortion, then one can imagine what a slaughterfest would lay ahead of us. The Minister wants to oppose this from the very start because interactions with the disabled and the sick, plus the attitude toward the mother who brings a disabled child into the world, would be pre-formed in this deadly way by this practice. Furthermore, she is realistic enough to know that any limitation of embryonic screening to certain critical situations would, in practice, not hold up. Thus the restriction of in vitro generation to cases of childlessness was not maintainable. It is presently done in order to perform a genetic selection.
Her second point weighed the legitimate interest of every human being in knowing who one’s father is against the interest of a sperm donor in his anonymity. The latter interest, said Zypries, would only carry weight if the breach of anonymity were to give rise to maintenance claims. But this very thing could be excluded by a simple legal ruling.
The argumentation of the Minister in favor of loosening the protection of embryos in the context of stem-cell research deserves a closer consideration. However, such a closer consideration reveals that this argumentation does not hold up. It lacks internal consistency. In the context of embryonic screening Ms. Zypries explicitly speaks of the “right to life of an embryo,” but then doubts whether such a thing as human dignity belongs to the embryo generated in vitro—a doubt, by the way, that Wolfgang Schäuble has already expressed.
But there can only be talk of the right to life of a being if this being is awarded “dignity.” The granting of dignity can, insofar as it deals with the legal sphere, have no other meaning than that the bearer of dignity is, as Kant would say, an “end in himself,” and so everything that is done to him by other human beings must be able to be justified to him. He has the status of a subject of rights, not only a means for the ends of others. And he is also not merely an object of care, as is stipulated in animal protection laws. In animal protection laws it is not animal dignity or animal rights, but rather human dignity, that is at issue. It is a matter of conscience for human beings to reduce the infliction of suffering in animals in for the sake of human goals to a level that results from a rigorous weighing of interests. The suffering of animals has no value in itself, and so the infliction of it must be justified by a high value. There is no “right-to-life” of animals.
If Ms. Zypries awards a right to life to the embryo, then she has already awarded it human dignity, namely the claim not to be considered as a value assessed against other values, but rather to be recognized as a subject of rights. Even the constitutional court should handle the concept of value carefully and not refer to the right to life as the “highest value.” That the right to life is not the highest value is already recognized in Schiller’s famous tragedy The Bride of Messina: “Life is not the highest good.”
But that is not the point. What matters is whether the perspective of a being should count, wherever a being exists, and whether or not it also belongs to the community of persons. A human being can freely subordinate his interests to the interests of another. He can “die for his friends” as Jesus and Epicurus taught. But with good reason has the lawmaker prohibited the carrying out of medical experiments useful to others on the mentally disabled who cannot give their consent. The embryo has not progressed far enough to “sacrifice” his life. We cannot justify to any human being that we tried to kill him when he was still dependent on us.
The utilization of life is not a legitimate goal of research
According to the opinion of Ms. Zypries, the “value” against which the right to life of the embryo is said to be weighed is the fundamental right to freedom of research. This right is said to collide with the fundamental right to life of the embryo and therefore this should be weighed against that. The expert in constitutional law Martin Kriele has shown many times the fallacy of this model. Unconditional fundamental rights such as academic freedom or freedom of research may not be restricted by the legislator. But their limitation follows of itself, as it were, from respect for the rights of others and the community under law. The “Sprayer of Zurich” who invoked artistic freedom would not therefore be condemned because the property rights of the owner of the sprayed walls outranked artistic expression, but rather because the freedom of the artist does not free him, a priori, from respecting the property of others. “The observance of public law allows us to see that this is no “restriction” and that administrative actions enacted on this basis imply no “interference,” because they only concretize the inherent, a priori limits of fundamental rights.” (Martin Kriele, “Unconditional fundamental rights and the rights of others” in Kriele: Right, Reason, and Reality; p. 625)
This is best able to explain the fundamental right of the free development of personality. If we understand that in the Hobbesian sense of an original “right to all,” then all education, all socialization, and yes, any legislation would consist in large intrusions into this development. But on the other hand, as Gomez Davila puts it: “We appreciate the free development of personality until we get to know someone whose personality has developed freely.” All learning restricts the freedom of thought. When we know the laws of nature, we can no longer think arbitrarily about the world—and about each good custom as “free” behavior. But in truth these “intrusions” are conditions of the human realization of what has been thus restricted. If there is the right to life of an embryo—which Ms. Zypries grants even to fetuses generated in vitro—then the freedom of research would not be restricted by this, but rather it cannot be extended a priori to the exploitation of embryos slain for this purpose. In the words of Martin Kriele: “The unconditional basic rights of Article 5 III GG protect both the scientist and artist against intrusions of governmental authority; they are not authorizations of each to recklessly trample over the rights of others, even if these rights were not founded by the constitution but rather by civic juridical laws, provided that the construction of these laws bore in mind the value judgments of Basic Laws (the constitution), including basic rights.”
If there is a right to life of the embryo, then this means that research, just as other experiments requiring humans, cannot be extended to exploitation (or “utilization”) of humans. This prohibition would be neither perceived nor felt as an intrusion into the fundamental right of freedom of research. What is only possible for research by illicit intrusion should not be allowed as possibility in a state under rule of law. The consideration of other countries is not relevant. If an old and established democracy such as the United States practices the death penalty, that is no reason for us to consider a corresponding amendment to our basic laws.