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Should Bioethics Commissions Have More Authority?

President Obama is expected to name a new national bioethics commission in the coming months, continuing the legacy of more than 30 (almost uninterrupted) years of advice to the chief executive and Congress on key life science issues by various bioethics advisory committees. The “interruptions” have been few, but some gaps were more noticeable than others.

The Ethics Advisory Board was established in 1978 to review protocols involving in vitro fertilization research but was all but disbanded when its budget was zeroed out by President George H.W. Bush. In a 1985 effort to develop a bipartisan bioethics committee separate from the executive branch, Congress established the Biomedical Ethics Advisory Committee, but it met only once in four years because of difficulties in agreeing about the stance that its members might take on abortion and other issues.

Seen in this context, President Obama’s recent decision to terminate President George W. Bush’s President’s Council on Bioethics (PCB) three months ahead of its scheduled end produced only minor eyebrow-raising inside the Beltway and by those of us interested in the politics, products, and processes of bioethics commissions. In my case, it was easy to make inferences, draw conclusions, and derive lessons from my days running President Bill Clinton’s National Bioethics Advisory Commission (NBAC) since I continue to wonder whether the United States has figured out the best way of structuring the optimal mechanism for providing ethics advice about health and science.

For example, I still recall the day (July 14, 1998) when we learned from an AP wire report that President Clinton had decided to reject NBAC’s stem cell recommendations – even before they had been finalized or submitted to the White House. The event was a stark reminder that president’s commissions really do serve at the pleasure of the President, even though their members and staff may wish that they functioned autonomously and independent of any political pressures.

Few would have taken much notice (except us commission nerds) if President Obama had allowed a lame-duck Bush commission to limp through its final months to complete its remaining work. Indeed, Bush let NBAC finish out its term until October 2001, and by being allowed to complete its work over the summer NBAC ended up submitting one of its most comprehensive reports, Ethical and Policy Issues in Research Involving Human Subjects, to President Bush on August 20, 2001. Still, Bush never referred to the report or sought to implement any of its recommendations.

So did Obama spend any political capital by ending the PCB a little early? Doubtful; in fact he probably earned some. Not only did he save the taxpayers a little money (every penny counts), but his action might be seen as one small step towards some needed reform in our current system of using experts to advise the government.

To make the most obvious point first, it has always struck me as somewhat odd that federal advisory committees created by executive order don’t adopt the rather civilized practice employed in other countries when the government changes – that committee members offer their resignations as a sign of respect for the new leadership. At the very least, this would avoid the perception – no doubt experienced by the President’s Council members and staff – of being told they are no longer needed. It also would afford the new administration a clear path to undertaking its own initiatives on these issues.

Obama neither permitted a lame duck council to limp along nor, as far as I know, did he encourage its members’ resignation. Instead, his actions were transparent and consistent with his political brand of philosophical pragmatism. He is said to favor a commission that will seek consensus and work to develop practical policy options over a commission that eschewed consensus and was designed to consider the philosophical implications of health and science problems.

Obama’s view puts him squarely in the mainstream of the history of bioethics commissions in the U.S. In one of the first comprehensive reports on U.S. bioethics commissions, the now-defunct Office of Technology Assessment (OTA) outlined their strengths:

“National commissions provide a vehicle to handle issues that are amenable to consensus building, or at least to an elaboration of conflicting views. Ideally, they garner the esteem of policymakers and experts by serving as a forum to: crystallize a consensus or delineate points of disagreement; identify emerging issues; defuse controversy or delay decision-making; propose regulations, develop guidelines, or formulate policy options; review implementation of existing law and policies; aid judicial decision-making; educate professionals and the public; and promote interdisciplinary research.”

Although written in 1993, the OTA report expressed a view about U.S. commissions that espoused the type of pragmatism that Obama has indicated will guide his administration. NBAC operated within this tradition: each its five reports offered specific policy recommendations (supported by sound philosophical argumentation), and the commission worked toward consensus, though was not driven by this as an outcome.

All other U.S. bioethics commissions have functioned in this way to a greater or lesser extent – except the PCB. And yet, while much has been made of the PCB’s explicit rejection of the consensus method in favor of “deep moral engagement,” there is little evidence that it accomplished this goal particularly well either.

So how to assess these bodies? When considering the impact of the Advisory Committee on Human Radiation Experiments, Ruth Faden once suggested that commissions should be judged by the “degree to which the president supports the commission’s findings and recommendations.”

If this is the case, NBAC had modest overall impact because President Clinton supported some reports and not others, and was silent on still others; but so too did PCB as judged by President Bush’s support for his Council’s conclusions on some reports – particularly on stem cell research.

Rather than wringing our hands about whether the next commission should be pragmatic or philosophical, consensus seekers or “deep engagers,” maybe it’s time to ask whether, after three decade of national commissions, the need for bioethics advice has matured to the point where we are prepared to establish standing commissions that span administrations; or to give commissions authority to adjudicate on issues, argue for them, or compel replies to them by affected agencies.

Just as it is foolish to ask whether placebos are ethical – when the proper question is whether a placebo is ethically justified for answering this research question — maybe it is time for our next bioethics commission to be given the flexibility to adapt its methods and approaches to the topics themselves. Might there be consensus on this?

Eric M. Meslin, Ph.D. is director of the Indiana University Center for Bioethics.

Published on: August 4, 2009
Published in: Bioethics

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