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At several points, Clark asks why we should push so hard to overcome the
natural boundaries between species or why we should "assail" [18] these
boundaries to create new life forms, namely, the chimeras of xenobiotics.
Asserting that the European Patent Office is "more sensitive to ethical
issues," Clark praises its policy of considering unnatural creations such as
human clones and transgenic animals "'unpatentable'." [19]
These points contribute to the frightening scenario she constructs, and they
display an ambivalence toward medical technology that is far from new.
Worries, calls for bans, and hostility have become part and parcel of Western
responses to genetic engineering, in vitro fertilization, embryo research, and
cloning. [20]
Those who oppose or seek to delimit new medical technologies often appeal to
nature as morally normative. Persons who respect natural boundaries are
considered ethical, while those who seek to change normal biological
functioning are considered disrespectful and immoral. Appeals to the natural
as moral and to the unnatural as immoral are especially strong when medical
technologies are new, strange, or, to use one of Clark's terms, "disgusting."
[21] The history of modern medicine illustrates how those who were alarmed
over anesthesia, invasive surgery, contraceptive measures, heart transplants,
and the innovative medical technologies just listed turned to nature as
normative. In part, what seems natural or unnatural is a function of
familiarity. [22]
Beyond familiarity, moral assumptions that are predicated on the natural as
normative are part of a long tradition of ethical reflection based on natural
law. [23] Insofar as it is predicated on nonreligious assumptions, the view
that ethical norms can be derived from natural biological functions is fraught
with difficulties. Although most natural law approaches appeal to human nature
-- especially human rationality and relationships -- the view that nature's
functions can serve as a basis for human morality offers a "totally inadequate
conception of the nature of human beings."[24] It assumes that all we humans
can and should do ethically is to discover, then to conform with biological
functions inherent to nature. Furthermore, this view undercuts science,
engineering, and particularly medicine, because all these manipulate nature
toward human ends.
This version of natural law ethics has also been predicated on the religious
view that humans should not unduly tamper with God's creation. It would be
interesting to know the degrees to which this view might have influenced the
respective history and current content of European and U.S. patent law. That
aside, it is notable that, due to their shared belief concerning the supreme
value of preserving human life, Judaism, Catholicism, Protestantism, and Islam
offer no principled objections to animal-to-human transplants. [25]
[18.] See Clark, supra note 1, at 148. [M.A. Clark, "This Little Piggy Went to
Market: The Xenotransplantation and Xenozoonose Debate," Journal of Law,
Medicine & Ethics, 27 (1999): 137-52.]
[19.] See id. at 144.
[20.] See R.M. Zaner, "Surprise! You're Just Like Me?: Reflections on Cloning,
Eugenics, and Other Utopias," in J.M. Humber and R.F. Almeder, eds., Human
Cloning (Totowa: Humana Press, 1998): 105-51.
[21.] See Clark, supra note 1, at 141.
[22.] See A.L. Caplan, "Is Xenografting Morally Wrong?," Transplantation
Proceedings, 24 (1992): 722-27.
[23.] See S. Buckle, "Natural Law," in P. Singer, ed., A Companion to Ethics
(Oxford: Basil Blackwell, 1993): 161-74. 24. Id. at 172.
[25.] See Nuffield Council on Bioethics, supra note 16; and R.M. Veatch, "The
Ethics of Xenografts," Transplantation Proceedings, 3 (1986): 93-97.
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