Reasons of Conscience: The Bioethics Debate in Germany

Reasons of Conscience: The Bioethics Debate in Germany

by Stefan Sperling

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Overview


The implicit questions that inevitably underlie German bioethics are the same ones that have pervaded all of German public life for decades: How could the Holocaust have happened? And how can Germans make sure that it will never happen again? In Reasons of Conscience, Stefan Sperling considers the bioethical debates surrounding embryonic stem cell research in Germany at the turn of the twenty-first century, highlighting how the country’s ongoing struggle to come to terms with its past informs the decisions it makes today.
           
Sperling brings the reader unmatched access to the offices of the German parliament to convey the role that morality and ethics play in contemporary Germany. He describes the separate and interactive workings of the two bodies assigned to shape German bioethics—the parliamentary Enquiry Commission on Law and Ethics in Modern Medicine and the executive branch’s National Ethics Council—tracing each institution’s genesis, projected image, and operations, and revealing that the content of bioethics cannot be separated from the workings of these institutions. Sperling then focuses his discussion around three core categories—transparency, conscience, and Germany itself—arguing that without fully considering these, we fail to understand German bioethics. He concludes with an assessment of German legislators and regulators’ attempts to incorporate criteria of ethical research into the German Stem Cell Law.

Product Details

ISBN-13: 9780226924328
Publisher: University of Chicago Press
Publication date: 04/12/2013
Pages: 344
Product dimensions: 5.90(w) x 8.90(h) x 0.90(d)

About the Author


Stefan Sperling has taught at Harvard University, Humboldt University in Berlin, and Deep Springs College in California.

Read an Excerpt

Reasons of Conscience

The Bioethics Debate in Germany


By Stefan Sperling

The University of Chicago Press

Copyright © 2013The University of Chicago
All rights reserved.
ISBN: 978-0-226-92433-5


Excerpt

CHAPTER 1

A Tale of Two Commissions


When I arrived in Berlin in June 2001 to begin my ethnographic fieldwork, it seemed that the entire nation was caught up in a controversy over the moral status of human embryonic stem cells. Human embryonic stem cells, first isolated in 1998 at the University of Wisconsin at Madison, are versatile precursor cells that have the potential to develop into many other kinds of cells in the body of an adult organism. They therefore hold therapeutic promise in areas of regenerative medicine such as organ and tissue replacement. The production or harvesting of embryonic stem cells usually requires the destruction of human embryos, which makes their use controversial.

The nature of the embryo had become a matter of public debate in part because new technological capabilities had made the embryo visible and manipulable, and in so doing had brought it into society. Embryos could now be imagined as society's weakest members—indeed, those most in need of protection. The question at hand was whether these tiny precursors of tissues, organs, and even human beings deserved any legal protection. Were early embryos mere lumps of cells, usable for research, or did their potential personhood entitle them to basic rights to life and dignity? I began following the debate closely, and over the course of about a year, the positions in the debate became firmer. During that time parliament debated and passed a law that regulated embryonic stem cell research. For the German parliament, as we will see, protecting embryos became a way of showing that even the smallest and weakest were treated with the respect that every human being deserves.

After the Stem Cell Law was enacted, people described the controversy as the Stammzelldebatte and referred to it in the past tense. To say "we have had the Stammzelldebatte" was to check off the topic as being over and done with: everyone had said what they had to say, and the legislation that issued from parliament was now binding on all. The term linked stem cells to the process of public deliberation and at the same time confined the controversy to a particular moment in time. A topically specific debate had taken place, the nation had participated, a consensus had been reached, and the issue was now closed.

But was it really so cut and dried? Just a few months ago the opponents of stem cell research had claimed that research on the human embryo was akin to murder, while proponents had claimed that their constitutional right to research was being infringed. To one side stem cells had been precursors to full human beings, while to the other side they had been mere matter. How could these radically contradictory existential positions have been reconciled to the extent that no open questions remained?


Two Ethical Visions

Before we can answer this question, we need to ask how the legal and moral status of embryos emerged as a problem in Germany in the first place, for the state as well as for citizens. How did the questions of what defines human-ness and what counts as a human being—possibly the deepest ontological questions arising from the life sciences—arrive for resolution in parliament?

The relations between parliament and the chancellor—in theory cooperative, as the chancellor represents the parliamentary majority— turned antagonistic in a struggle over the definition of ethical stem cell research. The rivalry became inscribed in two ethics commissions attached to the two branches of government. While the parliamentary commission had earlier worked away in relative obscurity, the emergence in 2001 of a second commission attached to the executive made it clear that ethical acts and judgments are not objectively discernible to just any informed and knowledgeable observer. The presence of two commissions was partly responsible for reframing the ethical stakes; the struggle between them made visible to outsiders like me the selectivity of visions that had to construct themselves as all-encompassing. The stem cell problem was the starting point for both commissions. But in both venues the question of the moral status of the embryo, and the stem cells derived from it, was transformed into the question of who can legitimately decide matters of national moral significance. The question "Who belongs to the moral community of beings whose human dignity is inviolable?" fused with the question "Who belongs to the moral community that can legitimately define the boundaries of being human?"

Max Weber's distinctions among types of legitimate domination help make sense of the dynamics that developed between the two commissions: the parliamentary Enquete Kommission on Law and Ethics in Modern Medicine (EK) and the cabinet-appointed Nationaler Ethikrat (NER). One could say that the former commission relied on bureaucratic authority to legitimate its claims, while the latter relied on charismatic authority. The EK drew on precedents and historical memories, while the NER crafted new rules for the game. Yet the forms of the two commissions began to converge in some respects over time: the bureaucratic commission gained charisma in its righteous struggle against the "illegitimately" conceived newcomer, while the charismatic commission fell into routines of its own that began to approximate bureaucratic rationality. As we will see throughout this chapter, the two institutions remained apart in their ideas about how public morality ought to be created.


Building an Ethical Imperative—The Ethics Lag

An observer of German political culture quickly finds that law, as both the expression and the guarantee of social order, is regarded as the immutable foundation of German political identity. Billboards I saw in Berlin displayed articles of Germany's Basic Law and referenced constitutional principles that protect individual liberties against government intrusion. In everyday conversations and in media reporting, even the smallest infractions led to calls for quick sanctions and warnings that intolerable conditions would result if the deviation was not addressed immediately.

Science, in contrast, is portrayed as constantly progressing as it refines the tools with which it inquires into the natural world. Nature, and in this case human nature, thus becomes mutable, putting the social order at risk from scientific advances. Popular media quickly picked up stories of potentially life-changing scientific improvements, and billboard campaigns I saw all over Germany sought to temper the inquisitive impulse by raising questions and providing possible answers intended to give people pause.

This wide portrayal, and perception, of law as static and science as mobile generates a sense that the law is lagging behind the sciences— what critical legal scholars have called the perception of a "law lag." Law, many think, arrives too late to regulate effectively. This lag results in a paradoxical situation: on the one hand Germans call for ethical debates in advance of scientific developments, while on the other hand they want to benefit from those scientific developments that by their very nature cannot be predicted and so brought under ethical supervision.

In conversation Germans use the words "legal" and "ethical" almost synonymously, and the "law lag" has also been perceived as what I will call an "ethics lag." As we will see, the precise relation between these terms is more complicated. In discussing bioethics, Germans often assume that science will proceed in uncontrollable ways unless one imposes tight restrictions on its progress. Science and medicine, Germans frequently remind themselves, can easily spin out of control unless a whole series of safeguards is in effect. One needs strong institutions, comprehensive representation (transparency), strong individuals (conscience), and a modern state (Germany) that draws careful boundaries around itself, distinguishing itself chronologically and ideologically from Hitler's National Socialism and East Germany's state socialism.

In part as a response to this perceived "ethics lag," parliament appointed the Enquete Kommission on Law and Ethics in Modern Medicine and charged it with clarifying ethical concepts, structuring ethical debate, facilitating exchanges between law and science, and anticipating future ethical dilemmas. In 2001 Chancellor Gerhard Schröder decided to get advice on bioethical questions from a commission independent of parliament, and he set up the National Ethics Council (Nationaler Ethikrat, or NER).

Both national ethics commissions, the parliamentary Enquete Kommission and the chancellor's National Ethics Council, were set up in part to address the pressing question of how to regulate human embryonic stem cell research. This novel form of research had arrived in Germany and appeared to threaten the nation's moral fabric. The commissions would restore order by preparing the law to react to these developments. The fact that the two bodies addressed the law lag (or the ethics lag) differently shows that the stem cell debates were not simply about stem cells, but more importantly, about the need to regulate them "in a legitimate way." In other words, the two commissions were as much a response to perceived disorder as an expression of it.

Despite all the talk of lagging, ethical "damage control" does not always follow developments in medicine, science, and technology. A congress on cloning that took place in Berlin in May 2003, for example, offered quite another picture. The Massachusetts-based company Advanced Cell Technology (ACT) had claimed in 2001 that it had created a human embryo for the sole purpose of deriving embryonic stem cells from it. A conference speaker announced that this claim was "false." Ludger Honnefelder, an influential German ethicist, nevertheless asked the pathologist Eckhard Wolf how ACT's claim should be evaluated ethically. Wolf replied that he did not know, but added that "one ought to act as though the clone already existed, and then judge it on ethical grounds." In other words, it was the role of ethics to foresee and steer science's advances—in this case, to assume "worst-case scenarios" and regulate them even before they come into existence.

In the work of the two ethics commissions as well, practice often contradicted the idea of an ethics lag. Both constantly searched for "good topics," defined not as topics that had captured the public imagination, but as those that were not (yet) in the spotlight and yet were sufficiently important to need regulation. Ideally, the commissions' practices implied, one regulates before regulation becomes necessary, not after. As the ethicist and EK member Honnefelder said at the 2003 Berlin congress, "The goal is a dialogue that occurs not after the fact but before the fact." And yet, once topics on the frontiers of science and medicine were identified, the commissions felt hesitant about their ability to evaluate these rapidly evolving issues. As we will see in this chapter and the one that follows, the effort to create ethical order was messy business.


Veilings and Unveilings

In 1991 the Bundestag voted to transfer its seat from Bonn to Berlin. The move to the restored and refurbished Reichstag was accomplished relatively quickly, but not before a spectacular art installation prepared the way. The artist Christo, best known for wrapping objects and buildings, and his wife and artistic collaborator Jeanne-Claude had spent twenty-four years struggling to win permission to veil the Berlin Reichstag, long imagined as the future seat of the German parliament. In 1995 parliament debated the aesthetic and symbolic merits of the veiling for a full seventy minutes and finally voted to allow the artists to proceed. Construction of the governmental quarters in the new capital had not yet begun, and the Reichstag building stood monolithically at the very edge of West Berlin, within meters of where the Wall had been. Before the Wall was built in 1961, only the black market had flourished on that barren land. In the decades after, the damaged building had been marginally used as a conference center and as a home for the poorly attended exhibition Questions to German History (Fragen an die deutsche Geschichte). West Berliners used the vast grassy areas surrounding the building for informal soccer games.

The installation was described, and very possibly experienced, as cathartic. In a remarkable engineering feat, a hundred thousand square meters of cloth, weighing more than sixty-one metric tons, were unfolded to cover every square centimeter of the Reichstag building. The veiling in reflective cloth, resembling silk in texture and appearance, with folds a meter deep, became a magnet for visitors. For two summer weeks the lawns around the building were filled with people, some equipped with blankets and pillows for extended contemplation, others selling drinks and snacks to sustain the democratic imagination. The atmosphere was lightly pensive, and newspapers reported that one could almost sense a collective exhalation. With repressed memories thus brought back into consciousness, but elegantly draped and safely reflected upon, Germany's political spirit and soul were symbolically purified, making it possible once again to move forward in history.

The material reconstruction of the Reichstag began as soon as the newly invested building showed its stone face again. Plans to modernize the building were driven by concerns over transparency, and the most visible exterior change was the addition of a glass dome, signaling the transparency of German democracy to European neighbors who had expressed concerns over the powerful nation once again growing in their midst. Major renovations also occurred inside the building, where immense glass walls continued the theme of transparency. The building was formally opened in April 1999, and parliament began holding its plenary sessions there in September of that year.


New Kanzler, New Kanzleramt

While the Reichstag was veiled and unveiled, construction also began on the chancellor's residence, the Kanzleramt, only a short distance away. Then-chancellor Helmut Kohl had dismissed the architects' plans for a building that would be aesthetically and spatially linked to the parliamentary buildings. He wanted a freestanding monolith, he told the architects, twice as tall as they had planned and clearly demarcated from the parliamentary constructions. At eight times the size of the White House in Washington, D.C., the Kanzleramt became one of the biggest government buildings in the world. Commentators quickly nicknamed the emerging monumental cube-shaped structure, with its large circular glass panes, "the washing machine." The building would end up being thirty-six meters tall—taller by far than the Reichstag, were it not for the latter's glass dome. As we will see throughout this chapter, if parliament stands taller than the executive in legitimacy or authority, it is because it has transparency, both rhetorically and materially, on its side.

The Kanzleramt took a long time to complete, and Chancellor Schröder was temporarily forced to govern from the Staatsratsgebäude at the Schlossplatz, which was known as Marx-Engels-Platz when Walter Ulbricht and then Erich Honecker ruled East Germany from the very same site. The Staatsratsgebäude, built with parts taken from the facade of the demolished Berlin Schloss, was conveniently empty in that period and, like other official buildings in the former East Berlin, was awaiting a decision on its fate. From there, the chancellor and his staff moved into their imposing quarters on April 30, 2001. Confronting each other with their glass walls, the buildings of the chancellor and the parliament seem to represent two fighters in the federal ring: one rescued from a dark past and projecting a sense of duty to make itself transparent; the other, thoroughly modern, looking forward to a bright future for Germany, premised on architectural and technological progress.

The Kanzleramt, when viewed from the Reichstag across the lawn, looks monumental and futuristic. It projects a bold vision, and one can easily imagine it as home to not only a new Germany but also a new ethics. The Reichstag, on the other hand, when viewed from the Kanzleramt, looks almost playful in its elaborate ornateness. The plenary hall, half below ground, with curtains drawn during sessions, is more like a theater in which visions of a new kind are projected against the historic walls. The building itself, restored and conserved as a palimpsest of history, contains within it many traces of Germany's "unmasterable past." The inner walls preserve Cyrillic graffiti by Russian soldiers who stormed the building in 1945, and (as noted above) plaques commemorate the parliamentarians killed by the Nazis.


(Continues...)


Excerpted from Reasons of Conscience by Stefan Sperling. Copyright © 2013 by The University of Chicago. Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents


Pretext
Building, Bildung
The Visible Public Sphere
Creating Readers
Normativity—Look It Up!
Grappling with Bioethics

1  A Tale of Two Commissions
Two Ethical Visions
Building an Ethical Imperative—The Ethics Lag
Veilings and Unveilings
New Kanzler, New Kanzleramt
Parliamentary Ethics—The Enquete Kommission
New Ethics—The Nationaler Ethikrat
Looking Back—The Enquete Kommission in History
Looking Around—The EK and the NER
Can the Nationaler Ethikrat Be Ethical?
Ethics Commissions as Saalordner
“This Is Not Bioethics”—“Bioethics Is a Dirty Word”
The Bundestag Comes to Life—Sternstunde des Parlaments
Conclusions

2 Disciplining Disorder
Learning to See the Right Things
Becoming an Ethical Insider
The First Day
Ethics Made Transparent
First Impressions
A Place for Disability
Dienstweg
Du und Sie
—More Ways of Creating Insider-ness
Writing Bioethics
Grammar of Democracy
“What Are the Ethical Aspects of Organ Transplantation?”
Translation—The Semi-Legitimate Outsider Attempts to Produce a Legitimate Text
Glossary—Marking Science, Unmarking Law
The Beginning of Life
Conflict of Objectivities
Paper Wars
A Visit to the Media
The Nationaler Ethikrat Goes Public
Karlsruhe—Merging Law and Art
The Last Day of the Commission
Rules, and Rules on Following Rules
Leaving the Field—An Outsider Again

3 Transparent Fictions
Toward an Ethnography of Transparency
Transparency Today
Crafting Citizens through Bildung
Democracy Made Transparent at the German Hygiene Museum
Place—A Pedagogical Training Ground
Participants—Who Are the Citizens?
Process—Education in Citizenship
The Citizens Speak, but Have Not Heard Clearly
Expert Reactions
Conclusions

4 Conscientious Objections
Constitutions of Glass—Transparent, or Merely Fragile?
Constituting Conscience
Kant’s Conscience
Native Theories of Conscience—Kant as Germany’s Moral Gold Standard
Public and Private Reason
Beamte—Delegated Conscience Then and Now
Tortured Conscience
Conscience and Resistance
Conscientious Objectors
Conscientious Abortions
Constraints on Conscience
Conclusions

5 A Failed Experiment
Abwicklung und Aufarbeitung
One Volk, One History?—Writing History Together
Making East Germany Transparent—And Seeing an Unrechtsstaat
Obsessive Transparency
Transparency on Display—The Stasi in Museums
Learning to See Themselves as Victims
How German Was It?
Mauerschützen—Suspending the Rechtsstaat/Erasing East German Conscience
Abortion
East Germany in the Enquete Kommission Recht und Ethik
Bioethics and the East German Public Sphere
Coda—A Very Private Place

6 Stem Cells, Interrupted
Ethical Imports at Last
“No Embryo Shall Die for German Research”
Ethics Becomes Law
Converting Ethics into Reason
Reading the Law
The Cutoff Date—An Unenforceable Line
Prohibited yet Permitted
Ethical German Research
The ZES and the RKI Reconfigure Science and Ethics
Inside the ZES
Jürgen Hescheler
Wolfgang Franz

Conclusion
Reading Borges, Reading Germany
Transparency—Text and Context
Potentialities—Setting Limits as an Ethical Act
Taboo—Dammbruch
Law and Memory—Recht und Unrecht

Acknowledgments
Notes
Bibliography
Index

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