Limits of the Abstract Standard Hard Cases and the Question of Individual Justice

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However, this does not settle all of the problems with the treatment/ enhancement distinction even on the macro-level of public health. The first difficulty may arise when it comes to what could be called "coupled phenomena", i.e. certain physical or mental features which by no means resemble a disease but may cause effects that certainly do. Then, in trying to treat or prevent the latter one must try to alter the former trait. To take some vivid examples: If having a specific physical feature - such as black skin, or a short stature, or a hooked nose, or a disposition to obesity, or to shyness, or something similar - is coupled (at least statistically) with significant disadvantages in a society, then having one of these features might predispose its possessor to psychological problems, such as depression, that we do in fact con

187 These positive deviations appear to be primarily (or even exclusively) mental in kind. But considering the speed of development of today's neurosciences, it is not too far fetched to ask how long it might take until we learn to what extent these deviations in talent were also deviations in brain functioning from the species-typical standard.

188 For the ongoing debate between "naturalists" and "normativists" in the struggle over an adequate concept of disease cf. n. 175 above.

sider psychic disorders or even diseases. In this case, preventing or treating the psychological disease would mean altering a healthy physical trait, thus crossing our boundary between treatments and enhancements detailed above.

This may not be a difficult problem, as long as we have the informed consent of the person involved. What is important, one might say, is not the immediate target of the medical intervention, but, rather, its final goal. If that is a disease, then nothing stands in the way of intervening with some physical or mental feature which, in itself, does not exhibit the symptoms of the disease, but which causes them.

However, it is not at all clear whether we should consider all of the above mentioned potential interventions to be enhancements, let alone cures. In fact, such interventions can potentially be either, viz. in terms of the relationship to certain societal norms which may denigrate certain features such as those mentioned above, thus making the bearer of such a feature in some way socially disadvantaged. However, we would label such societal norms as prejudices, and we would not want to endorse them by establishing medical services which, in a certain sense, comply with those norms. That raises the problem of medicine's complicity with undesirable social norms. For complying with those is exactly the symbolic meaning such a medical intervention would exhibit. Take, for illustrative purposes, the example of genetically modifying one's skin colour, or rather the future skin colour of an embryo in vitro. Such a measure might well become possible in the foreseeable future. If one did that for the sole reason that in one's society one's natural skin colour is bound to convey significant disadvantages, then one is tacitly endorsing a set of unpalatable, racist social norms. Such consequences should not, of course, be part of proper medical practice.

On the other hand, given the social norms as they are, the impending threat of harmful psychological consequences, like depression, might be very real and thus presenting a solid case for medical prevention or treatment. As far as justice is concerned, it is quite unclear whether (or to what extent) we can legitimately burden an individual with the cost of fighting social prejudices by not acknowledging her very real, individual problem as one that should be treated. Of course, the same ambiguity holds the other way around. To what extent (if at all) are we entitled to help individuals whilst at the same time reinforcing an undesirable social situation which is the very cause of them demanding that help and may lead to many others facing similar individual difficulties in the future.

Still, one may deny that this is a real problem. Interventions that raise the question of complicity with dubious social norms, one can argue, are still a rather long way from becoming reality due to the current rate of progress in scientific discovery.189 That aside, altering healthy physical or mental features

189 Even though we are in fact not convinced at all that this is so.

in order to fight a disease caused by one of them and surfacing elsewhere in the respective human organism is simply and only a matter of the personal freedom of the (informed and consenting) individual.

But things are not always as clear cut as in the case of reshaping one's nose. Take the newly debated phenomenon of "amputees by choice": the so-called "body integrity identity disorder" (BIID), a rather unusual but nevertheless by no means extremely rare mental (and neurological) disposition urging those who have it to demand amputations of healthy limbs, or interventions like the severing of the spinal cord because they desire to be paraplegic (cf. Bayne and Levy 2005). Quite a few of these people face serious problems of depression, sometimes grave risks of suicide, if their request is constantly denied. Should this type of an amputation be considered treatment (or prevention) of a mental disease?190 That would certainly strain our normal conception of treatment. Should it be called an enhancement (of mental features and qualities)? This, too, would somewhat strain the respective concept. The answer is not at all clear. Nor is it clear whether, in cases of serious risk of suicide, such an amputation should be included into the realm of proper medicine or not: as an intervention into the psyche through a surgical intervening into the body.

In the not so distant future, highly efficient strategies to correct severe deficits of psycho-social capabilities by intervening into the neural texture of the brain will probably be available. If such deficits, for instance an uncontrollable and reckless aggressiveness, are, by acknowledged diagnostic criteria, identifiable as manifest sociopathies, they might be integrated into the sphere of diseases, thus becoming legitimate objects for treatment. With respect to our "normal functioning" model of disease, that raises the question of whether or not there are criteria of a species-typical normality of such character traits as aggressiveness, in terms of positively compensating opposite traits (such as moral sensitivity, empathy and the like). This seems doubtful. It is difficult to see how the concept of a species-typical normality could be applied to human traits that are, in principle, of a limitless range. Take "moral sensitivity" as one example. Intellectual capacity (which might be significantly enhanceable in the foreseeable future) is another. Or take artistic talent or the ability to exhibit a socially graceful attitude in communicating with other people. It is hard to see what a theoretical account of species-typical functioning with respect to these "psycho-social" or intellectual capacities would look like.

But even if we managed to come to an agreement about where to draw the lower and upper limits of normality in such capacities, the species-typical-functions account would still face problems of justice: the exclusion of

190 Bayne and Levy (2005) report two such amputations in 1997 by a Scottish surgeon named Robert Smith. The amputees' personal (psychic) lives are reported to have significantly improved after the operations.

some individuals from beneficial medical services on grounds that may become dubious in certain individual cases. Manifestations of undesired traits in a person can be the results of some species-typical malfunctioning (medically speaking), but such behaviour can also have other causes not plausibly characterised as functional deficits. Norman Fost and David Allen, more than ten years ago, came up with the following widely discussed example:

Johnny is a short eleven-year old boy with a documented growth hormone deficiency resulting from a brain tumor. His parents are of average height. His predicted adult height without growth hormone treatment is approximately 160 cm (5 feet 3 inches). Billy is a short eleven-year-old boy with normal growth hormone-secretion [...]. However, his parents are extremely short, and (without additional growth hormone treatment) he has a predicted adult height of 160 cm. (Allen and Fost 1990:16)

Obviously it would not be easy to justify, why the undesired outcome in adult height for Johnny should be medically treated because it is the result of a deficiency in species-typical organic function, while treatment for Billy should not be granted because his condition cannot properly be labeled as malfunctioning of a species-typical physical capacity. On the contrary, seen from the individual's perspective, these criteria of line-drawing seem arbitrary and, therefore, unjust. Why should we, one might ask, be more concerned with the physiological cause of a particular condition than with the individual suffering originating from that condition?

It is not difficult to come up with examples in the field of psychic capacities. If, for instance, a boy is unable to concentrate in school for some disorder affecting the metabolism in his brain, then, on the species-typical account, we would have to acknowledge this as a malfunction deserving of medical treatment. But we would probably have to deny such acknowledgement if the same kind of inability to concentrate had its origin in certain omissions of early childhood education which the parents of the boy may be guilty of. Two obviously real cases of that type are cited by Buchanan et al.:

(1) An adult patient with a history of bipolar disorder had been stabilized on lithium for some years. He remained shy, however, and was referred to an out-of-plan group therapy situation, from which he clearly benefited over a period of several years. In its original benefit structure, this long-term treatment could not have been covered by HCHP (Harvard Community Health Plan, a health maintenance organization serving over 550,000 people in New England). HCHP revised its benefit structure, allowing an 'extended benefit' that would cover protracted therapy of this sort, without extensive copayments, provided the treatment was for a serious condition. But does treatment for shyness count as treatment of a serious disorder? The psychiatrist managing the Shy Bipolar's case believed that the shyness was the result of the onset of the bipolar disorder; had the disorder not interfered with the adolescent development of this man, who was normally outgoing before its onset, he would probably have been more outgoing. Consequently, the therapist reasoned, the 'extended benefit' should be given. Had the shyness not been 'diagnosed' as the result of the bipolar disorder, then even if it were comparably serious, there would have been no eligibility for an extended benefit.

(2) An intelligent, professionally successful, married father of two children sought treatment because of severe unhappiness associated with marital distress. His wife suffered from a serious mental illness that made her very difficult to live with. The 'Unhappy Husband' was committed to maintaining the marriage. A V code diagnosis ['Conditions not attributable to a mental disorder that are a focus of treatment' (DSM IIIR:359)] (marital problem) was made. In 26 sessions of psychotherapy the man was able to clarify some of the pertinent dynamic issues in his marriage, and developed a number of adaptive strategies for lessening his distress. The 26 sessions were highly productive. Unhappy Husband wished that his treatment would be covered by insurance, but he agreed that he was not suffering from an illness and that it was fair to expect him to pay. (Buchanan et al. 2000:111; cf. the further cases in Daniels 1996:237-241).

Whether or not it was really fair to expect that of the Unhappy Husband is not clear. True, the psychotherapeutic sessions he had should not, at first glance, be termed "treatment", at least not if the label is to be reserved, as we suggested it should be, for attempts to cure illnesses or disorders defined as deviations from species-typical functioning. Rather, what the man showed was a very normal (species-typical) mental reaction to stressful circumstances in his life, which he was unable to escape. So what was done with him looks more like an enhancement of his mental strength that enabled him to cope with those circumstances, and thus improved his well-being. However, seen from another possible perspective - the view that the common goal of medicine is the alleviation of suffering which results from certain physical or mental states - the exclusion of the "Unhappy Husband" from the basic, macro-level package of medical care seems arbitrary.

"Hard cases" like these certainly raise questions of justice. What they demonstrate is that even for the problem of demarcating the sphere of proper medicine the treatment/enhancement distinction is, to some extent, imprecise, and, therefore, of only limited worth. But that does not mean that it is of no worth at all. For beyond the appearance of arbitrariness in some individual cases, there are the general demands of distributive social justice that our distinction is supposed to meet and is apt to fulfill. The treatment/enhancement distinction is, primarily, an essential conceptual scheme under whose main categories we subsume the answers to the questions of what belongs to the realm of proper medicine and what does not. In addition, on the factual or material level it is a useful tool to begin the deliberations about what concrete services should be part of the basic package of care within that realm. However, we must be aware of its limited normative capacity: i.e. its capacity to draw a line between what is morally obligatory and what is not.

The distinction is a value laden tool, as is the concept of disease upon which it rests. We should not, therefore, misinterpret it as a criterion that could be established exclusively on empirical grounds and then deliver solutions to all problems of individual justice that might occur by simply applying scientific (bio- or physiological) means. Materially it cannot be used as an automatic and by itself decisive criterion for those problems of justice in specific individual cases. Rather, it opens an entrance to further debate in hard cases such as those detailed above. To a large extent, however, it is left to the individual decision making process within a given society to decide on which criteria these cases are to be identified in the first place, and according to which principles they should subsequently be resolved.

The important point about this process is that the democratic institutions, which have the competence to resolve these questions, have great deal of autonomy and a wide range of options open to them in developing their respective solutions. On the abstract level of legal norms, this refers primarily to the public policy process and to legislature and, on the concrete level of clarifying specific individual cases, to the judicature. Of course, the actual process of finding or drawing a line between normality and pathology in concrete cases and for concrete diseases is often significantly more complicated than is expounded by this description. This has to do with the fact that the treatment/enhancement dichotomy we have used so far is somewhat of an idealised abstraction. Both these concepts denote broad classes of activities, which might, in concrete cases, fall under the category of either treatment or enhancement to varying degrees. Thus, there will be certain cases which involve both treatment and enhancement of the individual in question. So rather than being a clear-cut distinction, the above dichotomy marks the conceptual endpoints of a wide continuum. Of course, there are plenty of clear-cut examples of treatment as well as of enhancements that we could cite. However, in between there is an unlimited range of activities that only partially fulfill the criteria of treatment or enhancement or may occupy a grey area in between. This general ambiguity could not possibly be handled by legislators and lawyers alone. So besides the legislature and the judiciary, there are other institutions involved as well that have a specific say in the process of defining these types of intervention and in drawing lines of demarcation between them. In particular, medical associations and physicians' organisations often develop guidelines for diagnostic criteria for particularly difficult or ambiguous cases. Similarly, the scientific medical community in general constantly contributes to the process of developing and sharpening such criteria. Finally, individual clinical practitioners are directly involved in deciding whether to treat a particular condition or not. And in so doing, the individual physician remains under the potential control of legal courts in reviewing his or her decision. All of these institutions and persons exert their own discretionary power within certain limits that are established and shaped by legal norms, in a complex process of defining treatment or prevention, on the one hand, from enhancement on the other.

Whatever the solutions adopted in individual cases might be, they will inevitably and legitimately be influenced by cultural, historical and, above all, economic factors. Of course, now and then this is bound to lead to individual decisions that will appear hopelessly arbitrary. (The growth-defi ciency case of Johnny and Billy described above is an example.) But this is an unavoidable consequence of the discretionary power which is in an essential element of democratic structures. What may seem arbitrary in the individual case is nevertheless jusitifiable under the abstract limits to individual claims on health-services that are legitimately set up by the respective democratic processes and authorities. Whether, and to what extent, society or legislation should entrust the individual physician with certain discretionary powers to deviate, in exceptional cases, from the regular treatment/enhancement scheme and consider a medical service "treatment," even though it would not be accepted as such on the macro-level of public health, is another matter. It might be handled differently by different societies. In general, the scrutiny and perhaps revision of such individual deviations will remain the task of competent legal courts.191

6.4 Problems of the Treatment/Enhancement Distinction for an Ethic of Self-disposition (viz. Self-improvement)

Instead of "self-disposition" or "self-improvement", the object of our following inquiry might even, and more poignantly, be labeled "self-creation." The latter term was introduced by Jonathan Glover almost twenty years ago for similar purposes as characterise the present context and to illustrate the core conception of a particular way of dealing with one's own embodied self. Its meaning Glover defined as "consciously shaping our own characteristics" (Glover 1988:131192). If we relate that more specifically to mental capacities, the term graphically captures an important idea behind, and a primary feature of, such a way of self-enhancement. The idea that somebody might deliberately assume responsibility for a development of her own character going far beyond what "nature and nurture" have endowed her with. So we will keep the term, as it were, within conceptual and normative reach.

191 A recent decision by the German Constitutional Court (Dec. 6th 2006) may illustrate this point. It ruled that a patient dying from an incurable illness, with no more recognised treatment options available, had a claim to a treatment of last resort that he strongly believed in and thus profited from mentally, even though it was deemed futile and useless by established medical standards. Social security, the court says, must provide financial funds even for treatments of that type of last resort with only psychological, but no physiological, effects, if there was no alternative offered by conventional medicine. The decision was criticised and rejected by the majority of commentators on grounds that its guiding principle could not be generalised, for it would be impossible to finance such a generous extension of the scope of proper medicine as a social system (cf. Francke and Hart 2006).

192 The general notion of a person "creating" or "choosing" his or her own character is, of course, much older in the philosophical literature; cf. Aristotle, Nico-machean Ethics, Book III, Para. 7.

First of all, however, we need to draw another basic and fairly obvious distinction with regard to possible normative problems of an individual self-enhancement. This distinction is between:

- problems of enhancing one's own physical or psychic traits, and the

- problems of enhancing such traits in others.

The second point relates mainly, but not exclusively, to persons or human beings who are not in a position to give informed consent to medical procedures. This distinction obviously bears considerable normative weight. We will try to identify and deal with the major moral and legal problems in both areas.

A further clarification and specification appears to be useful. Conceptually, as well as normatively, it does not seem quite accurate to discuss the problems of enhancing somebody else's psychic features under the heading of "self-improvement" (or "self-creation"). Certainly, such interventions raise questions of enhancing a human "self". However, it is not the enhancer's own self. This fact causes difficult problems of its own. Consequently, we will deal with the issues arising from this constellation separately (see Section 6.4.2, infra).

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