It’s the year 2030, and Jack and Lizzie want to have a baby the old-fashioned way. Eschewing artificial reproduction techniques that combine sperm and ova in a dish, they retire to their dimly-lit salon with a bottle of Italian wine and a bowl of strawberries, put an old romantic movie on the DVD, and let nature take its course.
At work the next day, Jill’s mobile device beeps loudly three times upon receiving a signal from her implanted sensor bank. “Conception!” she texts Jack in a hurry, “I’m off to the clinic!” When she arrives, an intake nurse briskly congratulates Jill and gives her an injection arresting zygotic cell division, then another delivering nanobots to read the new baby’s gene code. Breathless, Jack joins her in the waiting room, and they begin to leaf through familiar brochures.
Like most parents, Jack and Lizzie want children who resemble them but are also better than they are. They’ve anticipated and discussed this moment many times. They’ll probably go for a 5- to 7-point IQ bump to make Baby smarter, but not so smart that he won’t talk to them. Baby will also be taller, handsomer and healthier than blind genetic recombination might dictate; he’ll be free of the alcoholic hot temper that crops up occasionally in Jack’s family tree; and Baby won’t have to worry about pancreatic cancer or depression, thinks Lizzie gratefully, remembering tragedies in her own family.
The Head Genetic Engineer calls Jack and Lizzie into his office and begins explaining what their new one-celled baby girl is like right now, and what she could be like after a few deft touches. Under the Engineer’s agile guidance, the happy couple choose to implement most of their original tentative plans but also make a few spontaneous alterations, deciding for example to complement their new baby’s unexpected musical talent with the gift of perfect time. Lizzie settles back for a third injection that will upgrade her baby from Wonderful to Improved. A few hours later, when the first injection wears off, embryonic cell division begins.
Far-fetched? Perhaps not. Human germline engineering (HGE) may be technologically feasible, economically viable and socially acceptable in the not-too-distant future. If HGE does begin to flower, it will change humanity and human society in ways that are currently only poorly imagined. And humanity, or at least those of its members tasked with formulating public policy, will have to adopt legal solutions to pressing questions that arise.
Four kinds of scientific and technological progress are bringing the revolution on-line. They work in tandem. First, geneticists figure out which genes do what, individually and in combination. Second, neurologists map the human brain and trace its functions. Third, programmers create computer simulations that predict the effects of juggling genes. Fourth, bioengineers create better tools to cut and paste DNA strands.
All four of those disciplines have been racing ahead, especially in recent years. There is no reason to assume that any of them will run up against insurmountable obstacles. Nor is it obvious that prohibitive costs will block HGE development or restrict its availability to tycoons whose superhuman progeny will rule the rest of us. On the contrary, DNA technology shows every sign of being amenable to the same types of forces that catapulted silicon chip development forward so powerfully. Indeed, society and the law may find it hard to regulate hobbyists creating new forms of life in their basements.
There is a global document, UNESCO’s Universal Declaration on the Human Genome and Human Rights, suggesting that germ-line interventions are contrary to human dignity. However, it has no legal force. Another international instrument, the Council of Europe’s Convention on Human Rights and Biomedicine, actually did play a concrete role in making heritable modifications illegal in many European countries. Anglosphere nations like Canada, Australia and New Zealand also have bans in place, as do high-tech powers Israel and South Korea. However, the much-cited Araki worldwide survey of national laws shows an incomplete and inconsistent patchwork of regulation, which may be an invitation to reproductive tourism in the near term that sparks a race for the bottom shortly thereafter.
The United States and China do not ban HGE. The U.S. National Institutes of Health prohibits federal funding of research involving germ line alterations, and some speculate that the Food and Drug Administration may try to assert increased jurisdiction over HGE in the future, but otherwise the field is clear. China’s state-sponsored Beijing Genomics Institute is busy searching for the genetic determinants of human intelligence, and a team of Chinese scientists made headlines last year by genetically modifying human embryos using CRISPR/Cas9. It’s hard to see how a national-security-driven genetic arms race between the world’s two great powers can be avoided. Meanwhile, in the U.K., the Human Fertilisation and Embryology Act and Authority (both abbreviated HFEA) arguably comprise the most well-developed regulatory system governing artificial reproduction and genetic techniques. The Authority maintains a general ban on heritable human DNA alteration, but it also recently allowed genetic modification of human embryos for research purposes.
Under such circumstances, the shock waves generated twenty years ago by the birth of Dolly the cloned sheep may soon pale in comparison to the hysteria that would follow the unanticipated birth of Molly the genetically enhanced little girl.
The first is prohibition. Prohibition might be temporary, pending further technological developments and the parallel development of an ethical consensus; or it might be permanent, as a matter of principle. Bans are favored by most religious establishments. For example, the Catholic Church’s instruction Dignitas Personae holds that “in its current state, germ line cell therapy in all its forms is morally illicit.” The faithful are joined in opposition by so-called “bioconservatives” of various stripes (Leon Kass, Jeremy Rifkin &c), ethical philosophers who attach near-sacred status to the human genome in its present form and warn of horrors to come should HGE come to pass. Prohibitionists also receive some support from some social justice advocates, who contend – incorrectly, I think – that HGE would only worsen problems of human inequality by reserving genetic enhancement for the already rich and powerful.
One major problem with prohibition is that it doesn’t seem ultimately sustainable, given its lack of uniform international support and the powerful human drives and desires propelling us toward HGE. Nor is it obvious that complete prohibition, even if possible, is truly desirable, at least insofar as it would prevent parents from correcting grievous genetic defects in their unborn children.
A second, completely opposite course would be coercive eugenics. Thankfully, there’s no visible constituency for forcing parents to modify their offspring genetically. If and when HGE technology proves itself safe, beneficial, convenient and inexpensive, and its use begins to be widespread, the vast majority of parents will almost certainly decide of their own accord to give their children every possible advantage, genetic or otherwise. Coercion would be neither desirable nor necessary.
A third option, also opposed to prohibition, is libertarian HGE. Many scientists, futurists and self-styled “transhumanists” (Gregory Stock, Nick Bostrom et al.) support unfettered free choice, and it may be assumed that companies able to make money from HGE will also advocate its widest application. Unfortunately, advocates of unfettered free-market approaches, perhaps dazzled by wonder or blinded by greed, apparently fail to take account of the awful consequences that would almost certainly quickly ensue if human genes were modified with wild abandon. Monstrosities and miseries born of human vice and folly would almost inevitably spur harsh regulatory backlash, definitively ending their libertarian spring.
Finally, government may compile and periodically amend a list of permissible HGE modifications. Should the government also facilitate the provision of such modifications to all desiring members of the general public, it could transform HGE into a great force for public health and social equality.
The latter approach, which may be characterized as paternalistic, finds precedent in the British regulations governing pre-implantation genetic diagnosis (PGD). PGD may be seen as a precursor technology to HGE and thus merits examination.
PGD typically is used by people who don’t want to pass on dangerous genes to their children. Sperm and oocytes produced by a couple are combined in a lab to produce a number of fertilized eggs, which are then genetically screened before a healthy one is selected for implantation. PGD’s original core purpose was to avoid having babies with early-onset, incurable monogenic diseases that are painful, degenerative, and sometimes deadly – diseases like cystic fibrosis, muscular dystrophy, hemophilia, and Tay-Sachs. Soon its use grew to include later-onset conditions like Huntington’s disease, other ailments that are less severe or more curable, and even some illnesses that might not develop at all, depending on how genetic tendencies play themselves out over time. PGD use also expanded to include the creation of “savior siblings,” where the intended therapeutic benefit was not to the new baby itself but to a seriously ill older sibling in need of transplant tissue. More controversially, PGD has occasionally been employed in some places for non-therapeutic sex selection, and there have even been reports of parents seeking to use PGD to have children who share their own genetic disabilities, such as deafness or dwarfism.
The U.K.’s regulation of PGD has been thorough and judicious (see this Parliamentary report), choosing for example to allow sex selection only to avoid sex-linked disorders, and prohibiting selection for disability. The HFEA considers each proposed use on a case-by-case basis and publishes an often-updated list of permitted uses.
If HGE is legalized and regulated under a licensing regime similar to that currently governing PGD, it would ideally pull prospective parents away from rogue clinics into a safer and more ethically responsible environment. However, it should be recognized at the outset that unlike PGD, HGE has the potential to bring about waves of successive revolutions in human affairs and their ideological underpinnings.
It is not difficult to imagine areas of society, law and public policy that would be quickly transformed by HGE. Health care would become unrecognizable in a world of designer babies and well-developed somatic gene therapies. Advances in genetics could also change approaches to environmental protection by engineering human resistance to climate change or to pollutants, or by modifying non-human species or even eliminating some dangerous ones while keeping their DNA on file in case of need.
HGE could also solve seemingly intractable problems posed by persistent racial, ethnic and sex-related differences. Currently, the West is plagued by cognitive dissonance resulting from, on the one hand, the expansive progression of egalitarian aspirations from equality under the law to equality of opportunity and finally to an insistence on equality of outcomes; and, on the other hand, increasing evidence suggesting that at least some important human group differences are strongly rooted in DNA. Cracking DNA’s code and learning to modify it will first settle complex nature-nurture disputes and then allow tomorrow’s children to incorporate, in combination, the most desirable human genetic traits that have evolved all over the planet.
Finally, HGE could generate new metaphysics to define man’s place and purpose in the world. Post-religious modernity finds itself in a quandary: It is no longer able to believe in old faiths, but when it discards them, it also loses the intricate webs of religious law, custom and obligation that bind and nurture families and communities. Secular ideology, with its prime political emphasis on freedom and the individual, has not yet devised workable substitutes for the ancient organic culture of religion. HGE, though, would force humanity to grapple anew with fundamental existential questions about our nature and purpose, within the context of creating and guiding future generations.
For example, shall HGE be restricted to therapeutic uses, i.e. preventing disease, or may we also splice in synthetic genes for the sake of enhancement, perhaps granting our children telepathy or the ability to fly? And if we combine thousands of existing alleles to enhance the next generation’s average IQ, or to strengthen their immune systems well beyond current human norms, is that therapy or enhancement?
Shall we also use HGE to improve humanity’s moral character, for example by designing children who are less reflexively fearful and aggressive than their parents, or who possess more far-ranging empathy? There are already thinkers who propose that we increase “genetic virtue,” notably Julian Savulescu, who warns that mankind’s destructive power now exceeds its wisdom and self-restraint, so that we must re-engineer ourselves if we don’t want to kill ourselves off.
Should humans continue to die? Aubrey de Grey might say no. But all things must end, eventually, and while most of us would like to live longer, healthier lives, perhaps immortality would rob life of its spice and vigor? No one knows.
Should human childhood be shortened and accelerated? Should some animals be granted greater intelligence? There is no apparent end to such questions, and the answers are well beyond what we can determine today. The best we can do for now is to create a framework, constitutional if you will, for discussing and deciding such issues as they arise. Whether that framework resembles the U.K.’s PGD regime or takes some other form, it needs to be more flexible and evolutionary than the absolute legal bans existing in some countries, but also much more ordered and disciplined than the legislative vacuum present in others.
Jim Daniel is a comparative law scholar and author of Building the Network for Human Evolution