Eubios Ethics Institute | Book List | TOP - Asian Bioethics in the 21st Century

12.2. Steering in the Tides: National Bioethics Committee as an Institutional Solution to Bio-politics?

- Wenmay Rei
Associate Professor of Law, Chung-Yuan University,
Department of Economics, Finance, and Law;
Project investigator,
ELSI Division of the National Research Program
for Genomic Medicine, National Science Council.
- Jiunn-Rong Yeh 
Professor of Law, National Taiwan University Law School;
Coordinator,
ELSI Division of the National Research Program
for Genomic Medicine, National Science Council.
Email: wenmay@cyw.edu.tw

Introduction: A Case Study of Taiwan

Rarely has there been any issue more fiercely debated than recent progress in genetic technology. Since the birth of Dolly Sheep in 1996, national policymakers worldwide have been compelled to cope with issues entangled with economic interests in genetic technology, distributive justice concerns in the usage of genetic information and fundamental values such as human dignity.

Often involving physicians and medical research, the foregoing issues in bioethics usually fall within the realm of administrative regulation and medical ethics characterized by professional self-regulation. However, because of the highly controversial legal, sociological and ethical issues implied, governments worldwide had been setting up bioethics committees on the national level to seek a moral consensus among different values and disciplines.

This paper focuses on the legitimacy of these national bioethics committees in the policymaking of genetic technology. This paper sees these committees as an institution for parties with different perspectives and interest to reach moral consensus on highly scientific, yet moralistic issue. Thus, instead of looking into substantive issues abound in bioethics, this paper hopes to examine "how" should these issues be decided, "how" were it decided, and "how" to structure a better policy-making institution so as to reach a moral consensus in a democratic society.

The term "bioethics committee" requires some clarification upfront. Some of them have a legal status in the sense that the law mandated their existence and that their opinion has legal effects. This includes ethics committees in the administrative agencies that approve research on human subjects or discipline illegal and unethical medical practices in actual cases.

A second strand of ethics committee refers to those with pure advisory status, and exits in non-government institutes such as hospitals, research institutes, or medical associations that advise their colleagues on ethical issues. Some of their decisions might lead to further discipline with the institution or the medical association, but the authority to do so comes from bylaws of these private institutes or association rather than statutes passed by the Legislature.

A third kind of ethics committee is the hybrid of the foregoing two. It refers to ethics committees set up by the government to provide advisory opinions on bioethical policies to the ultimate policy-maker, be it the President, the Congress, or a particular regulatory agency. The latter kind is unique in that although its opinion is advisory in nature, it carries a lot of weight in the democratic society because it often shapes the ultimate policy. It is this reason that leads this article to focuses on ethics committees on the nation level that only rule on abstract principles rather than concrete cases.

Our concern is, in what ways can we justify the existence of these committees in a democratic society where citizens have rights to consent to policies that would affect their lives? Indeed, these issues involves knowledge beyond laypeople's comprehension, yet, they also involve fundamental value choices that ultimately belongs to citizens in a democratic society. Usually the legislature makes the first order choices that bind the administrative agencies to act and make policy decisions within that realm. In usual circumstances, this ensures that the government policy is accountable to the people. Nevertheless, with biotechnology developing so fast and uncertain, most of the issues are left to administrative agencies to decide within their authority delegated by the Legislature in broad terms that can provide little guidance as to what the administrative agencies should do. Concerns thus arise when these ultimate policy-makers have no democratic legitimacy themselves.

This paper argues that, to the foregoing concern, national ethics committees are both a problem and an answer, depending on what kind of committee it is. As a problem, it is similar to administrative agencies in that it has no democratic legitimacy. When they are set up under the penumbra of the administrative agency it is to advise, these committees in fact carry a lot of weight in the "advisory" opinion they make. How can we justify such further "delegation" in facto? What are these committees' relationships with medical professions and other stakeholders that have a strong interest in the policy-making of these issues? How can we better justify the legitimacy of ethics committee in a democratic society?

On the other hand, as an answer, when properly structured, these ethics committee could serve as an institution for dialogue and deliberation, to promote public consensus in a democratic society. It is this possibility that this article wishes to address.

Since no ethics committees operate in a vacuum, and their legitimacy and relationship with other stakeholders depend on each case, this article uses Taiwan's newly established Council of Medical Ethics (hereinafter referred to as "the Council") of the Department of Health (DOH) as a case study, because the case of Taiwan presents a unique example where the state holds a leading position in ethical guidance as oppose to a weak counterpart in the civil society. Another reason is that, the Council has a relatively free agenda in a tolerate society not diversified by different ethnicity or religion. In a career of slightly more than two years, it has produced five guidelines or opinions that range from high-tech issues such as the disposal of embryonic stem cell and more traditional issues such as undue solicitation of patients. This allows us to examine a national committee that has a strong autonomy, hoping to shed light on the foregoing issues.

Drawing in theory of civic republicanism and other possible justification for national ethics committee deciding bioethics issues in a democratic society, this paper will suggest that with a proper design of inclusiveness, transparency, and deliberation, a national bioethics committee may better serve as an institutional solution to bio-politics.

National Ethics committee as a Solution to Bio-politics?

The Legitimacy of Bioethical Policy-Making in a Democratic Society

Policies related with bioethics usually involve regulatory power bestowed by relevant statutes on more general and traditional accounts. Though with some exceptions, most of these national ethics committee are set up by the administration to advise the agencies on bioethical issues.[1] They often deal with newly arose issues that the Legislature provides little guidance with vague legal delegation. For instance, when the law specifies that clinics should discard embryos left over after successful reproductive medicine, can clinics save these "discarded embryos" for research and therapeutic purpose? Or, since reproductive medicine is legal, can physicians make women pregnant by transplanting cloned eggs? Although these can fall under the realm of administrative agencies' current regulatory power, and they do involve dense technological issues only agencies are equipped to handle, they are also value choices fundamentally different from those decided and delegated to the administrative agencies. What justifies an administrative agency to make such decisions that threatens how the society defines what is "human" and how it should be protected and respected?

A full answer to this question requires us to back up a little bit into the more classic political philosophy. In a tripartite government structure, the people elect their representatives to make law for the administration to implement, which in turn are checked by judicial review. The whole point of this system of check and balance is to ensure that the government does not limit the people's rights without the people's consent. Since the government rules by law, and the law are passed by the people's representative, even though the state limits the people's freedom or places burden on the people, it is done with the people's consent.

The origin of the foregoing theory of governance and consent can be traced back to the theory of John Locke and Jean-Jacques Rousseau in the eighteenth century, and is deeply rooted in democratic societies. Yet, citizens' participation is limited to the process of legislation. Once the law is passed and left to the administration to enforce or make more detailed rules, people used to have little right to participate.

When the night watchman state was replaced by the welfare state in the twentieth century, the government faces multiple duties heavier than ever. It not only has to take into account the need to preserve the environment, promote public transportation, and see to it that people has adequate health care, it also has to respond to dynamic changes in technology, politics, economic development and international finance. All these duties require immense knowledge in diverse expertise way beyond the legislature's capacity. Hence, the legislature often delegates administrative agencies with broad discretions to make rules that might affect the people's life and freedom no less than the law.

What justifies the administrative agencies to enjoy wide discretion to make policy? Does this practice violate the ideal of democracy? This issue has become more pertinent since the rise of the welfare sate and has been the major concern of many studies. Jerry Mashaw summarized possible theoretical foundation to justify the administrative state. (Mashaw, 1985a:26-24): First, administrative agencies' legitimacy comes from the authorization of the legislature like a transmission belt; hence, the wide discretion of administrative agency does not violate democratic theory (Stewart, 1975:1667). As straightforward and clear cut as it seem, the problem with this theory is that it overlooked the ambiguity and abstract of statutory delegation. Namely, when the legislature delegates the administrative agency to make more detailed rules, it often leaves too broad a cope for them, way beyond the scope of necessity (Seidenfeld, 1992:1517). Given this situations, relying on this theory will render the ideal of democracy into meaningless formalities and might justify any arbitrary and capricious administrative decisions.

Another theory that seeks to justify board delegation of administrative discretion is that, the administrative agency has more expertise and knowledge necessary to make sound policy (Mashaw, 1985a:19). The downside with this argument is that, even though a policy involves highly technical knowledge, it also involves values judgments. Allowing administrative agencies with no democratic legitimacy to dominate important values judgments violates the idea of democracy. Moreover, administrative agencies are often captured by self-interested social groups and might not be trusted by the people (Seidenfeld, 1992: 1517). Hence, there is no reason to believe that the administrative agency can make political judgments simply because it has expertise.

A third theory to justify broad delegation to administrative agencies is that, people get to participate in administrative rule-making, thus supplies the democratic legitimacy the administrative agency lacks (Mashaw, 1985a:22-23). This fortifies the shortcoming of the transmission belt theory discussed above. Moreover, citizen participation theory also supplements the downside of theory of expertise discussed above, because at least the people affected by the decision participated the decision-making.

Depending on the goal of citizen participation, the theory of citizen participation is further influenced by two political theories, namely, the theory of pluralistic democracy, which sees the realms of policy-making as a market of different bidders (Dahl, 1957). In this vision, administrative agencies are seen as neutral arbitrators who simply distribute resources according to wrestles between interest groups.

However, through empirical studies, scholars argue that administrative agencies are more than disinterested arbitrators (Farber & Frickey, 1987). Other scholars are dissatisfied with the theory's ignorance of public interest. This explains the rise of civic republicanism. As a normative theory, it argues that the aim of political process is to allow every citizen to participate in a deliberative process as an equal party of the political community, so that all of them can reach consensus on their collective good (Ackerman, 1984; Michelman, 1985). To fulfill this aim, civic republicanism recognizes interest groups' threat to collective good, and argues that policy-making procedures must include minority groups that has long been marginalized, so that the democratic process is not distorted through improper influence and that the citizens may identify with their community and the resulting consensus (Seidenfeld, 1992).

Although neither the theory of pluralistic democracy nor the theory of civic republicanism presupposes the administrative process to be the forum to realize their respective ideal of political decision-making, scholar of administrative law argues that administrative agencies are better able to make reasonable political decision-making, because it deals with policy in more specific level, and that the citizens can better hold them accountable to their decisions (Mashaw, 1985b). Other scholar also argues that the government should amend the process of administrative rulemaking to better fulfill the ideal of civic republicanism (Seidenfeld, 1992).

Civic Republicanism thus envisions a society where government policies are debated in on-going dialogues between people with different viewpoints, especially those most disadvantaged, in order to reach a collective good agreed to by all. It would emphasize transparent information, inclusive participation, deliberative debates, and consensus of collective good.

Placed against the backdrop of civic republicanism, though without legal binding forces, national ethics committee, if properly structured, might help administrative agencies to seek moral consensus through deliberation and citizen participation. This will lead to de facto legitimacy for administrative agencies to make political decisions. To further clarify this argument, the following section examines the features and function of national bioethics committee.

National Ethics committee as a Vehicle to reach Moral Consensus

Although national ethics committee began to proliferate recently since the research development of human genomic project, using ad hoc committee to provide advisory opinion on ethically controversial issues is not new. Scholar argued that the Royal Commission on Poor Laws operated from 1832 to 1834 might be one of the earliest model for contemporary ethics committees (Walters, 1989:363-68). The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research that produced the famous Belmont Report was set up in 1974 after the Congress mandated so. France set up its National Consultative Ethics Committee for Health and Life Science in 1983 after a presidential degree and later by an act.[2]

These national ethics committee differs case by case. Yet, they usually share certain features: first, they usually draw together people with different backgrounds such as medical training, philosophical training, religious concerns, and so on. Second, they usually make decisions jointly after discussions and procedures that vary. Third, the number of members in these committees is limited and so that they can carry meaningful dialogue in face to face debates.

Depending on their goal and degree of successfulness, they might be able to fulfill one or few of the following functions:

Clarify factual information involved.
This is critical especially for issues that involve highly technical details difficult for the public to understand yet critical for decision-making. A national ethics committee can bring in experts with different stances of value and training, clarify factual information, so that the public is not misled.

Pinpoint and scrutinize issues involved.
Policy-making related with science and technology tends to involve subtle issues of social justice that are disguised under highly technical issues. Although these can be critical to the decision-making, issues of different levels in logic and priority are easy to get tangled together. A national ethics committee can help to pinpoint important issues and scrutinize their priority.

Introduce Technical Expertise into Policy-making
One of the reasons ethics committee invites scientists and physicians of different specialties is that, they introduce technical expertise that government may need in the policy-making of bioethics. Technologies may still be premature, and its impacts often are uncertain. Having experts in the ethics committees give the government a reliable source of consultation.

Keep the Public Informed
With proper dissemination and readable languages, the committees' opinions can help inform the public with the issues being debated. Thus, most committees release well-balanced reports on relevant issues and arguments.

Allow people with diverse viewpoints to participate
Usually members of the national bioethics committee are people with different trainings and values including, but not limited to, physicians, philosophers, sociologists, lawyers, scientists, and people with religious alliance. This ensures that the committee will take into account diverse viewpoints. An exceptionally good example for inclusiveness is the Human Genetic Commission of the United Kingdom. It has a policy to open its membership for public application, so as to secure a wide selection of candidates with diverse background and high motivation to participate.

Facilitate Reasoning for Moral Persuasion
Many of these national ethics committee distribute extensively written reports that not only explain different perspectives and concerns involved, but also how the committee reached their decisions. This includes why did the committee put certain values in priority, how did the committee weighed the importance of all values involved, and its response to opposing opinions. This renders the national ethics committee a mechanism for moral persuasion, and is most critical for issues that are hotly debated and when the society is divided by very different viewpoints.

Set Up Standards of Ethical Practices
Most national ethics committee, though advisory in nature, seeks to set up ethical standards for the people to follow. They might also signal the governments' regulatory policies in the future, simply because the members often enjoy certain authority on that issue to be chosen as members in the first place, and the committees often makes their decisions for good reasons. For instance, the Belmont Report of 1978 was widely known for articulating the ethical principles that later became the foundation of Tom Beauchamp and James Childress's influential textbook the Principles of Bio-Medical Ethics (Jonathan Moreno, 1995:76).

Fortify Government Policy's Legitimacy
Perhaps the most imporatant and common reason to set up these committees are that, they provide legitimacy to government policy, even if it is an unpopular one, or even if it comes late. Again, although the committeee does not enjoy any legal authority, the reputation of the members, the reaonings it provided, and sometimes the deliberative procedure it went through gives weight to its decision that the government later might endorse.

To sum up, in the post-genome era where fundamental values are challenged and the future of the techonological development uncertain, national bioethics committee serves as a useful mechanism for government to achieve multiple goals. This is more so when relevant parties and issues are highly politicalized. The format of a committee ensures wider participation, yet insulates the decision-making process from politcal forum that is easy to loose control.

Nevertheless, is national bioethics committee the solution for bio-politics? Since it is not the legal decision-maker, nor can it guaranteee public acceptance merely because it is had reached decision in the format of a naitonal committee, it all depends on what kind of national committee in what kind of society it is. The following section uses Taiwan's Counicl of Medical Ethics as an example to evaluate possible problems a national bioethics committee tend to have.

Taiwan's Council of Medical Ethics Scrutinized the State as a Moral Leader?: Taiwan's Council of Medical Ethics in Context

As a developing country with highly educated labors, the government of the Republic of China has a tradition to promote science and technology. In the 1980s, it successfully made computer industry the key industry through concessions in taxation, subsidy for research and development, and organized the renowned Hsin-chu Industrial Park (Tseng & Li, 1999).

In 1982, the government formally listed biotechnology as one of its key industry to develop in the future. (Cheng, 1997). It not only funded research projects through government agencies such as the National Science Council, Department of Economics, and Commission of Agriculture and venture capitals, it also set up research foundation and institutes to develop strategic technology (Cheng, 1997).

Under this backdrop, in the late 1990s when governments worldwide began to feel apprehensive of the prospect of genetic technology, the government in Taiwan followed suit by funding research regarding the ethical, legal, sociological implication of biotechnology. These researches and the academic discourses it led to introduced government policy-makers to the merits and experiences of national ethics committees abroad.

On May 1, 2001, the Department of Health set up a Council of Medical Ethics to promote medical ethics and advise the DOH on relevant policy-making. It has 17 members appointed by the Minister of Health for a term of one year. The committee convenes every three months to consider issues in medical ethics. It has only two staffs that also have to work on other businesses. The committee usually considers issues proposed by DOH, but it also handled cases proposed by its own member.

In the two terms so far, the members included one to two government officials,[3] eleven to twelve physicians which further includes the deans of four medical schools, three senior physicians in major medical schools, three physicians with background in bioethics, and the chairperson of the Medical Association of the Republic of China, presiding as the representative of that association. Four out of the seventeen members are layperson, which includes a law professor with bioethics background, a hospital social worker, a district attorney, and a scholar that specializes in medical sociology. When the medical sociologist became the President of a foundation that is dedicated to reform Taiwan's heath care system, her seat went to a philosopher with a background in bioethics.

As an advisory body, the Council has delivered several recommendations and three guidelines since its establishment. These recommendations ranges from ruling on ethical issues in substituting the mitochondria in female patients' eggs with other women's mitochondria to assist the patients' chances of pregnancy, scrutinizing controversies in the disposal and usage of embryonic stem cell, examining privacy issues in national health insurance's newly developed electronic ID card, and weighing ethical issues in press coverage of healthcare institutes' development in research and treatment.

Unlike its counterparts in Europe and the U.S., Taiwan's Council of Medical Ethics has a different agenda. Its recommendations ranged from high-tech to traditional medicine, distinguishing Taiwan's Council of Medical Ethics from its foreign counterparts that deals mostly with the newly raised ethical issues in genomic medicine. It is to cope with Taiwan's chronically ill-functioned professional ethics mechanism such as the soliciting patients' through free busing and press release on new treatments, as well as the newly raised issues in bioethics such as substituting the mitochondria in a female patient's egg to assist her chance of pregnancy. Furthermore, although it is advisory in nature and chaired by non-officials, it operates under the government agency that is in charge of regulating and punishing unlawful and unethical medical professionals.

While the birth of national committees were often a response to scandals of a national scale or heated ethical concerns and debates in the society, the Council was on the one hand, part of an effort the DOH has been trying to promote medical ethics where self-regulation among medical profession is lacking; on the other hand, a response anticipating possible bioethics issues already being debated abroad.

Weisbard's study on the U.S' President's Commission provides an explanation for this move. These committee helped government officials to deflect personal responsibility and potential vulnerability on highly controversial issues. In fact, by eluding its responsibility to the committee formed by experts that appears to be objective might even allow the official to appear statement-like (Weisbard, 1987:778).

The government's effort quickly paid off. In May 6, 2002 the front page of Taiwan's two major daily newspapers reported that in New Jersey of the United States, 30 babies' had been born with the assistance of reproductive technology that substituted the mother's mitochondria with that of another woman to assist the patient's chance of pregnancy.[4] The press also discussed about possible ethical issues that might involve for the child that carry genes from three people. While the news focused on technological development abroad, the discussion remained purely theoretical. Yet, in the second day, the news reported that a physician in Taiwan had performed the same procedure as early as four years ago, and had published the result in an American journal in that area.[5] The newspaper also reported some physician to say that "so many Taiwanese physicians can perform this procedure that it is just a matter of 'to do, or not to do'. "[6]

This immediately drew the attention of the public and the DOH. The Council quickly faced its first challenge. With the media covering ethical concerns both in Taiwan and abroad, the Council decided that it should consider the opinion of another advisory committee set up earlier to address ethical issues involved in reproductive medicine. Though no rule in the past specifically forbade the practice, the latter advisory committee decided to classify it as a human experiment that requires the DOH's prior approval. Since the physician did the procedure without such approval, the DOH fined the physician 150,000 NT dollars. With some cross memberships between the advisory committee, the Council respected that decision, and did not renew the discussion.

If the Council seemed to have gotten away easily in this first meeting, it did not hesitate to take up the issue of how can one dispose embryonic stem cells three months later in its second meeting on August 23, 2001. Observing heated controversies it raised abroad, the Council decided that it should listen to the public's opinion. Initially it entrusted this task to the Bureau of National Health, an agency under the DOH in charge of reproductive medicine. Yet, without its own staff or funding, the Bureau further commissioned the task to the Association of Reproductive Medicine.

The Association of Reproductive Medicine held three public hearings in the North, South, and Middle section in Taiwan, with 30 to 80 people participated respectively. The hosting association invited people with legal, bioethical, medical and religious background specifically, but also opened the hearings to the public.

According to the minutes of these public hearings, there was a consensus on banning reproductive cloning, trans-species cloning among the participants. For the issue of using aborted embryos, while scientists argued for opening its usage, bioethical scholars mainly focused on the integrity of using aborted embryos as a source of stem cell, emphasizing the importance of the donor's informed consent and separating the motive to abort the embryo and the decision to donate it for stem cell research and treatment. Only a few representatives from Christian and Catholic churches, whose viewpoints have been minorities in a predominately Taoist and Buddhist Taiwan, argued that ending the life of embryos created by God is immoral, therefore rendering any usage of these embryo unethical.

Participants were more cautious of the issue of therapeutic cloning, or using the technique of somatic cell nuclear transfer (SCNT) to clone human embryo for research and eventually, therapeutic purpose. A major concern was whether this might create opportunity for reproductive cloning. If this situation can be excluded, participant with Christian background approves this technique under strict control, because, according to them, such embryo is cloned by eggs about to be disposed and the somatic cell of a human being, this makes it the extension of the life of the human being that is cloned, rather than a new life being created to be used. Likewise, participant from an influential Buddhist organization also approved the usage of the technique, because such embryo were not created from a sperm and an egg, and has no soul to be respected.

When it came to the issue of creating embryo from donated sperms and eggs specifically for research, and eventually for therapeutic purpose, participants were most divided. Participants with religious background, be it Christian or Buddhist, maintains that donated eggs and sperms can only be used for reproduction, and the embryo it produces thus cannot be used for research. Bioethics scholars, physicians and scientists, however, were more willing to accept such procedure if these occasions are highly limited and necessary, and are under tight control.

In its sixth routine meeting on February 19, 2001, the Council issues a six-point ethical guideline after its member mulled over the debates in the hearings:

  1. The source of embryo stem cell for research purpose is limited to (1) embryonic tissues from natural miscarriage; (2) legal abortion; (3) excessive embryos previously created or harvested for reproduction that are less than 14 days old.
  2. One should not use donated sperms and eggs to create embryo for research purpose.
  3. Whether embryo can be created from somatic cell nuclear transfer involves too many issues, and is therefore preserved for further examination (italic added by authors).
  4. When used for research, embryo stem cells and their sources should gained from noncommercial sources free of charge, with the owners' consent according to the ethical guidelines of collecting human tissues.
  5. One should not use embryo stem cell to study reproductive cloning.
  6. When one uses embryo stem cell for human experimentation, it should be done only for therapeutic purpose, and only by teaching hospital according to the Health Care Act.

However, this was released six months after the Council first took up this issue. While the public hearings went on island-wide so that the Council can get a feeling of what the society thought of their hot potato, the Council turned toward ethical issues in more conventional issues that has high consensus in the society. The Council issued two guidelines that set up ethical standards for hospitals not to disclose patients' privacy when accepting news coverage and not to engage in advertisement when they release news about their new treatments and researches. Another ruling advises hospitals not to solicit patients by providing free bus services or encourage patients to make appointment through internet by lottery games.

The guidelines that aimed to correct unethical behaviors in more traditional medical practices helped to shore up the Council's de facto legitimacy when medical profession has long been unpopular for their unethical practices and malpractices. Positioning itself as a careful moral leader, the Council gained sufficient political and social capital to make their decision on the more controversial issues of embryonic stem cell.

In retrospect, both the public hearing and the positive publicity proved useful. Because although the public hearing did not raise a lot of public discussion, and the policy on the usage of embryo was considered pretty liberal as oppose to that of Germany and the U.S., nor were any criticism of the Council's opinion. At least from appearance, the society simply accepted it as it is.

Of course, to win this result, the Council was very careful about its conclusion. For instance, even though participants of three public hearing were generally receptive of therapeutic cloning, the Council declined to allow it outright, and decided to reserve it for further discussion. Likewise, although only representatives from religious organizations opposed creating embryo specifically for research purpose, the Council forbade it, along with reproductive cloning and trans-species cloning.

However, the fact the Council keep its position on therapeutic cloning ambiguous is telling. It could have banned it altogether, or declared a moratorium before it decided. Instead, it simply left the issue open. Compared with other countries' policies, it conveniently coincided with Taiwan government's overall effort and interest to promote biotechnology nationwide. In a news article published afterwards, an unidentified officials of DOH even admitted that, before there is a guideline for therapeutic cloning, the current policy amount to an acquiescence of therapeutic cloning.[7]

Another subtlety lies in the association commissioned to hold the public hearings. Though their expertise in the issues of embryonic research is peerless in Taiwan, the Association of Reproductive Medicine is not disinterested in this issue. Gynecologists often are the very supplier and users of embryos, sperms, and eggs whose fate is under debate.

Judging from the limited viewpoints represented in the hearing to check the balance, the DOH or the Association could have done a better job. Only two guest participants had legal background in the three hearings, one of which is a professor of forensic medicine, working in a medical school. Although Taiwanese society is predominately Buddhist and Taoist, only one monk from an influential Buddhist organization came to attend one of the hearings. In the other two hearings, the Buddhist or Taoist organization did not send any representative because they have no comment. Five bioethicists attended the three hearings, even though the database of National Science Council shows that there are 72 scholars currently studying or have studied the legal, sociological, and ethical issues of biotechnology.

Moreover, the general public was slow to know about the Council's agenda. With the exception of the two more controversial issues above, the public is informed only after the Council releases its decisions in the press. Only recently, after its sixth meeting, has it began to post its results on the DOH's website. This gives the people little chance to participate.

Yet, in the press or on the website, when the Council does release its decisions, it does not include its reasoning. Indeed, even in the official minutes taken by the Council's staff, it records only the conclusion, not the reasoning. It only lists the issues it is dealing with, and its final answer to the issues. No one can tell if there was any arguments among them, what were the arguments, how did they reach the conclusion, under what circumstances or consideration. This is hardly very useful in facilitating moral consensus among the public compatible with the civic republican ideal.

Finally, the membership of the Council is predominated by physicians compared with other established national ethics committee. For instance, the President's Council on Bioethics of the U.S. Presidents has 9 lay people out of 17 members, Human Genetic Commission of the United Kingdom has 9 out of 18. In contrast, there is only 4 lay people in the 17 member of Taiwan's Council of Medical Ethics, and according to the minutes, they are often absent from the meeting.

All of the features raised above makes the Council appear like a wallpaper only to put up formalistic legitimacy enough for the medical profession to conduct their research and treatments. Substantive moral consensus among the public did not seemed a major goal. For with only 2 part-time staffs to supports the Council's function, there is no way they can hold public conference, publish advisory reports, or conduct investigation on its own.

One way to explain this design is that it is the business of medical profession. Indeed, the DOH did set the Council up to promote medical ethics, which is traditionally a "family matter for the doctors." And the Council did begin to issue three guidelines to set up ethical conducts in the medical profession. Interestingly, these ethical guidelines should have been done by Taiwan's Medical Association's own Bioethics and Disciplinary Committee. Yet, since they have not been doing their job properly, by doing it for them, the Council predominated by renown physicians became a substitute of physician self-discipline. Viewed from this perspective, an advisory committee predominate by senior physicians not only is understandable, but also necessary.

Yet, if ethical issues traditionally dealt by medical profession justify the physician's predominance in the Council, the opinion on embryonic stem cell certainly does not. As discussed before in the earlier part of this article, with the fundamental moral issues involved, such process of policy-making cannot withstand the test of democratic value.

Interestingly, in retrospect, this makes one wonder whether the Council's dual character is desirable. On the one hand, the international concern on bioethics in genetic technology motivated many governments to take up the issues of medical ethics traditionally left to medical profession's self-regulation. In Taiwan, however, the medical association simply does not have a mechanism for self-regulation. And without the international trend of bioethics committee, the DOH probably would not have intruded into medial ethics so long if it does not violate the law. So when the government official did follow suit and set up this Council, the moralistic and trendy debate that coincides with the international community gave the medical profession reasons to tolerate the Councils' intrusion. This tolerance extended even when the Council started to reflect on the more mundane side of medical ethics, which should have been address long before this wave of bioethics concerns.

On the other hand, it worked well when the Council took up the more controversial issues of bioethics as well. Dealing with traditional medical ethics gave the Council political and social capital to cope with the more controversial bioethics. Even though the ethics committee eventually took a liberal stance that coincided with the government's effort to promote the research and development of biotechnology in Taiwan the medical profession, it did not raise much criticism. The society along with the medical profession simply accepted the decision.

Nevertheless, the fact that Taiwan's Council deals with medical ethics that has implication in more fundamental issues and those that could be left to self-regulation hinders the instillation of democratic nature that should be fulfilled in the former one, by allowing the medical professional to dominate it with their professional interest and viewpoints. This overlooks the arbitrary value choices that might be made under the disguise of technical expertise.

As a consequence, despite its effort of public consultation, the Council of Taiwan only provided legitimacy in a formalistic way, when it could have informed the public with clarified facts, plural viewpoints, deliberative reasoning through a better balanced representation.

Ways to Improve the Council's Function to Fortify Medical Ethics in Taiwan

How can we rectify the Council's shortcomings and better justify it in a democratic society? This paper argues that, with proper restructure, the ideal of civic republicanism seeking for collective good provides a possible justification. As discussed above, compared with traditional democratic forum in the Legislative, ethics committee provides a face-to-face setting that allows limited number of people with different backgrounds to communicate and debate with each other. Ideally, by "thinking out loud" with their reports disseminated, national ethics committee can instill more rational dialogue when searching for a middle ground that all can accept. Some times this can begin with issues that all agree that is important, or with moratoriums that all regards necessary for a certain period of time.

When ethics committee can justify its value not by any legal formality, but with the rational and inclusive quality of its decision, it can even serve as a mechanism of "higher law-making" that gives the ultimate policy-maker a higher burden of proof, if he or she declines to accept the ethics committees' advice. In this way, even though ethics committee has no legal binding force, it facilitates the deliberation of a democratic society that the theory of civic republicanism cherishes so much.

Nevertheless, ethics committee would not facilitate the process of moral deliberation if it is not properly structured. Jonathan Moreno once summarized a the criteria for a committee to operate successfully (Moreno, 1995:83):

  1. relatively free of political interference
  2. flexible to address issues.
  3. with processes and findings opened and well-disseminated.
  4. formed by members that have diverse backgrounds and experiences, and are free of ideology.
  5. not mandated to handle issues like abortion that might be "a priori" divisive.
  6. adequate funding that allows enough staff to evaluate different perspectives with relative objectivity.

One could add a few more. First, opening membership to the general public to apply, as is currently practiced by the Human Genetic Commission of the U.K., could ensure a wider selection and diversity of members, so as to reflect the pluralistic viewpoints of the society rather than that of the ultimate policymaker. This also ensures that members are highly motivated in the process so that each viewpoint can be diligently represented. The Human Genetic Commission also requires the members to disclose their interests that might have any concern with the issues discussed. This helps to ensure the neutrality of the members, and also help establish the public's trust in the committee.[8]

Second, conducting public consultation can help stimulate public debate and allow the committee some sense of the public's positions. This requires careful design of the process. For instance, the Danish Board of Technology of Denmark is famous for its citizen panel, consensus conference, and various other efforts to inform the public and simulate meaningful public participation. [9]

Third, a well-balanced report, written in readable form for the public is important for the ethics committee's role of moral persuasion. It should identify the problems involved, the arguments considered, and the reason why it eventually recommended its opinion.

In the end, a sound process of moral persuasion is the surest cornerstone for these ethics committees' legitimacy. After all, committee with only formalistic or ceremonial significance abound. There is no reason to assume that national bioethics committee would be respected, simply because other bioethics committee won respect in other countries. Without formal legal authority, the committee will not earn any moral authority merely because the government appointed its members. Although the committee might be able to win attention and expectation because of its unusual members involved in the beginning, if its decisions turns out to violate public expectation without good reason, it will soon lose its de factor legitimacy, and become another formalistic committee. It must preserve legitimacy carefully built up.

Conclusions

Recent developments of genetic technology have raised a resurgent interest in bioethics. This triggered attention toward the more traditional medical ethics as well. In addition to ethical concerns of high-tech, the government also faces the pressure to strengthen the mechanism to ensure medical ethics in more traditional issues. The newly established Council of Medical Ethics of the Department of Health, also the sole Ethics Committee at the national level in Taiwan, became the means for the government to strengthen its regulation on medical ethics.

The lesson of Taiwan has two versions. A weak version is that: in a society where the medical profession has no self-regulatory forum to do the thinking, an ethics committee in the state is better than arbitrary decisions by a single Minister.

However, a strong version is that, to better inform the public and promote ethical debate, the government should open the committee's membership to more plural membership, and disclose the reasoning of the debate. The cost to reach moral consensus will not be cheap, especially when there is little forum already existing in the society to serve this function and the government has to start from the scratch. But so isn't our society's moral value of life and science.

The authors jointly wish to thank Daniel Fu-Chang Tsai, Hsiu-I Yang, I-An Chen, Kouming Lin, Hui-chih Nui, Li-Ju Lee, and Wen-chen Chang for their helpful information and comments

Bibliography

Ackerman, Bruce. 1984. The Storrs Lecture: Discovering the Constitution, 93 Yale L. J. 1013, 1032-43 (1984)
Cheng, Pei-Wen. 1997 Wo Kuo Sheng Wu Ko Chi Yen Chiu Hsien Kuang [Current Progress of Our Countries' Research on Biotechnology], Bioindustry vol.8 no.4 p.241-247.
Dahl, Robert. 1957 Pluralist Democracy in the United States: Conflict and Consent 23-24 (1967).
Farber, Daniel. & Philip Frickey 1987 the Jurisprudence of Public Choice, 65 Tex. L. Rev. 873, 895-98 (1987)
Fuchs, Michael. 2002. Ethics Commissions and Ethics Councils in International Comparison, Indo-German Workshop on Bioethics, Bombay, India, March 2002.
Lin, Kouming. 2001. Fong Hsien Cheng Chih Yu Chi Yin Ko Chi Cheng Ts'e Te Ming Chu T'san Yu: Chi Yi Chung Tsu Chi Shu Fa Chan Ch'u Chi T'e Fong Hsien Cheng Yi [Democratic Participation in Risk Politics and the Policy-Making of Genetic Technology: Controversies involved in the Early Stage of Recombinant DNA Technology]. Symposium of the Ethical, Legal, and Sociological Implication of Genetic Technology, June 10, 2001 in National Taiwan University School of Law.
Mashaw Jerry. 1985b. Prodelegation: Why Should Administrative Agencies Make Political Decisions? Journal of Law, Economics and Organization, vol. 1.
Mashaw, Jerry. 1985a, Due Process in the Administrative State. Yale University Press.
Michelman, Frank. 1985. Interest Group in American Public Law, 38 Stan. L. Rev. 29, 45-48 (1985).
Moreno, Jonathan D. 1995, Deciding Together: Bioethics and Moral Consensus, Oxford University Press.
Seidenfeld, Mark. 1992, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. p.1512.
Tseng, Hsin-chiao & Long-Sheng Li, 1999 Wo Kuo Ko Chi Cheng Ts'e Chih T'an Tao [An Examination of Our Countries' Policy of Science and Technology], Industry in Free China, November 1999 issue p.17-32.
Walters, LeRoy. 1989 Commissions and Bioethics, Journal of Medicine and Philosophy, vol.14, no.4
Weisbrad, Alan J. 1987 the Role of Philosophers in the Public Policy Process: A View from the President's Commission, Ethics, vol. 97, no.3.




[1] Although some are set up by the Congress. For instance the German Parliament set up a study commission to examine the issue of importing embryonic stem cell.

[2] For a survey of historical developments of national ethics councils, see Michael Fuchs, Ethics Commissions and Ethics Councils in International Comparison, Indo-German Workshop on Bioethics, Bombay, India, March 2002.

[3] In the term of 2001, there were two government officials including Wong, Juei Hen, then director of Health Maintenance, and Kuo, Hsu Song, director of Planning. In the term of 2002, Mr. Kuo became the only government official in the committee, though his title became Director of National Health because the section was re-named and re-organized as Bureau of National Health.

[4] See United Daily News, p.1 2001/5/6. China Times, p.1 2001/5/6.

[5] United Daily News 2001/5/7 (http://udnnews.com/news/focusnews/focus/275813.shtml (2001/5/7 visited)

[6] United Daily News 2001/5/9 (udnnews.com/news/medical/medical-news/278826.shtml (2001/5/9 visited)

[7] Ming-Shen Daily News, 2002/3/20, http://udnnews.com/news/medical/medical-news/745697.shtml (2002/3/20 visited).

[8] For more information, see the website of Human Genetic Commission, http://www.hgc.gov.uk (2002/8/21 visited).

[9] For more information see http://www.tekno.dk (2002/8/2 visited)

JArticle top

Eubios Ethics Institute | Book List | TOP - Asian Bioethics in the 21st Century