O. Carter Snead, What it means to be human: The case for the body in Public Bioethics, Harvard University Press, 2020, pp.321
Anyone concerned about the current values conflicts in our societies should read this book. Although it focuses on conflicts in public bioethics, the insights of the author, O. Carter Snead, have application to a much broader range of values conflicts in what are sometimes called the “culture wars”.
Snead starts with a history of American Public Bioethics. He then asks, “What does it means to be human” and addresses two competing responses – “expressive individualism” and “embodiment” – and articulates the anthropology (the study of human beings and societies) that informs each of these views. He argues the former is inadequate on at least two fronts. First, it “forgets the body” and sees the person as only a mind, a self-actualizing will. Second, it does not contemplate or accommodate human relationships and the reality that we are social beings.
Snead then takes an innovative approach to legal scholarship. He proceeds to an in-depth analysis of six judgments handed down by the Supreme Court of the United States in relation to abortion. He undertakes this analysis in order to determine the law’s view, as manifested in these cases, of what it means to be human, that is, the anthropology that undergirds and informs the judgments he considers.
Snead convincingly demonstrates that the SCOTUS’s view of the human person is that of a disembodied, atomized individual with no necessary connections or obligations to others. In other words, the law applied in these cases views the person as existing in isolation from any relationships and as self-creating, bodiless, and with no obligations except those to which they have consented. In short, the human person is just a free-floating will.
Snead accepts that the will or mind is an important element of what being human means, in that respect for autonomy and self-determination are fundamental human rights, but says it is an inadequate vision to explain the totality of what being human means. He argues that it does not accord with our lived experience and how we perceive ourselves and others, and proposes an alternative view that will help us to “become the kind of people who can make each other’s goods our own”.
In subsequent chapters, Snead considers the law governing reproductive technologies and physician-assisted suicide and shows that this law, or the lack thereof, is also the product of the same mistaken limited view of “what it means to be human”.
Now for a more detailed report on the book.
History of American Public Bioethics
The first chapter is entitled “A Genealogy of American Public Bioethics”. Snead defines “Public Bioethics” as “the governance of science, medicine, and biotechnology in the name of ethical goods”. The title tells us upfront, as is true, that the book focuses entirely on the anthropology and the related ethics that inform the law relevant to American Public Bioethics. That said there is much for all of us to learn from Snead’s analysis of the American experience, because it provides an analytical template with universal application in post-modern, democratic, pluralistic Western democracies.
Moreover, the American bioethics history and experience is relevant beyond the United States because, as Snead documents, the scholarship and practice of contemporary Bioethics first evolved there and had a powerful influence on the worldwide development of the field. As an aside, it is sometimes jokingly said, “Bioethics saved the life of philosophy”.
Bioethics also had a major impact on law, not just on philosophy. Starting in the late 1970s, judges and legislatures faced with issues raised by unprecedented scientific developments, especially those affecting people personally in their intimate lives and relationships, such as new reproductive technologies, turned to ethics for guidance. We now have a well-established practice of ethics informing law in such contexts. Law has a pedagogical function and its essential purpose is to promote human flourishing. It fulfils that goal through implementing governance and, in doing so, it also reflects and establishes societal norms. That makes understanding the values the law is implementing in any given situation crucial to bioethics, because bioethics is also concerned with implementing values.
This first chapter comprises a comprehensive account of the American medical research scandals revealed in the 1960s and 1970s that rocked Americans: the Tuskegee experiment in which poor, uneducated African-American men with syphilis were deliberately left untreated to allow researchers to record the natural history of the disease. The Willowbrook State School project, which involved feeding institutionalized children with intellectual disabilities live hepatitis virus. As well, Snead notes a series of other seriously unethical medical research studies carried out on vulnerable Americans.
In a recent lecture in which he discussed his book, Snead proposed that “the United States governs itself by reaction to scandals” and American public bioethics is a paradigm example of that phenomenon. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research was a response to scandals, including those mentioned above. President Bush’s Council on Bioethics followed it. These bodies were prestigious and highly respected and had worldwide impact, not least because their work and members were influential in United Nation’s agencies, such as the World Health Organisation. In addition, at the time, they were the main, and possibly the only, official bodies researching, debating and articulating public bioethics issues in the public square.
Having set the stage in explaining the history of the emergence of American Public Bioethics and showing why it was needed, Snead turns his attention, in chapter 2, to the anthropology – “the premises about human identity and flourishing” -- that inform the law governing American public bioethics. Snead concludes that “the dominant anthropology of American public bioethics … most closely resembles what sociologist Robert Bellah first termed “expressive individualism” whom he quotes. (Note: “Expressive individualism” is sometimes called “intense individualism” or “radical individualism”.)
“Expressive individualism” is “the view that the individual person considered in isolation is the fundamental and normative reality. [In survey research] Bellah found that [Americans thought that] human flourishing consists in the expression of one’s innermost identity through freely choosing and configuring life in accordance with his or her own distinctive core intuitions, feelings and preferences”. As Snead points out, this elevates autonomy to the highest ethical good and can even be used to justify law and public policy that support the exercise of an individual’s will to overcome natural limits, as, for example, is manifested in legalizing abortion, reproductive technologies, and assisted suicide.
Snead shows why “expressive individualism” is, at the least, an incomplete concept to explain what it means to be human and in doing so articulates an explanatory concept that includes both mind and body, that is, it includes our embodiment. He also shows that, depending on the context in which it is applied, “expressive individualism” can be a dangerous idea. For instance, it places vulnerable people not able to express their will or fragile people at grave risk, because it does not recognise our individual or societal obligations to them, rather, it promulgates the view that we have no obligations to care for others to which we have not consented. Consequently, in an unwanted pregnancy the mother has no obligation to the fetus, which means she should be free to choose abortion. Does it also mean, however, that she does have obligations to the fetus in a wanted pregnancy and, therefore, could be prohibited from, for example, smoking or drinking alcohol? In short, the law would allow her to end the life of the fetus, but prohibit her from harming it.
“Expressive individualism” also means that when respect for individual autonomy and protecting the “common good” are in conflict an ethical balance between them is not sought, rather the former is given priority. As mentioned already, this does not accord with reality or our lived experience as social beings and it does not take into account or protect relationships or the inherent obligations flowing from these. Central to Snead’s objections to “expressive individualism” is that humans are mind and body, but “expressive individualism” is “forgetful of the body”. He explains in considerable detail the need to build embodiment into our concept of “what it means to be human”, the justifications for doing so and the serious consequences of not doing so.
Snead then examines the impact and consequences of this intensely individualistic vision of what it means to be human on the interpretation of the law in three contexts, including its being a cause of the absence of law to govern these contexts. Chapters 3 and 4 examine beginning-of-life public ethics issues – abortion and reproductive technologies, respectively. Chapter 5 focuses on end-of-life public ethics issues – physician assisted suicide and, in passing, euthanasia, which, Snead says, he does not discuss because euthanasia is not legal in America. Snead observes that the approach the law takes to end-of-life public ethics issues is an application of the law and its underlying anthropology articulated by SCOTUS in the abortion cases.
The Supreme Court and what it means to be human
Chapter 3 is built around an extensive analysis of the six major abortion decisions of the Supreme Court of the United States, all of which liberalized American law on abortion. Snead writes, “The primary question is: What vision of human identity and flourishing anchors the relevant doctrines and principles of enforcement” of the law applied by the Court. He continues: “The law of abortion – like all law – exists to serve persons. What, then, is its grounding vision of persons, their needs, and their nature?”. To answer that question Snead undertakes an inductive anthropological enquiry - an innovative, highly detailed, painstaking approach - to reveal the Court’s vision of what it means to be human and how that vision is reflected in their judgments about the law which should govern abortion.
Snead shows how the Court developed a range of justifications of women’s rights to have access to abortion in deciding the sequence of six cases. They started in Roe v. Wade by creating a pregnant woman’s constitutional right to privacy in determining what should happen to her body. They ruled, therefore, that up to a certain point in pregnancy, the law could not prohibit abortion, because it was a legally protected personal decision of the woman concerning her health. In the companion case, Doe v. Bolton, the Court articulated a wide definition of health. Subsequently, the Court relied on the woman’s right to liberty to be free of the burden of an unwanted pregnancy and, indeed, the burden of unchosen parenthood. Later still, Justice Ruth Bader-Ginsburg articulated women’s right to equality with men, who did not face such a pregnancy burden, which required that women have access to abortion. It merits noting that none of these judgments was unanimous.
A strategy for promoting acceptance of so-called “progressive values”, such as a “right to absolute reproductive freedom”, is to argue that respect for rights to privacy, liberty or equality require acceptance of these values. This is a powerful argument because nobody can credibly argue against the importance of respect for rights to privacy, liberty or equality, and Snead does not do that. Rather, he shows that respect for these rights, whether individually or collectively, without taking into account broader and deeper considerations does not provide an adequate basis for promoting human flourishing or provide a comprehensive vision of what it means to be human.
In the abortion cases, the Court dealt with the fetus/unborn child by rejecting that she was a person and saw her as having only “potential life”. Snead notes that the court saw conflict between the pregnant woman and the fetus as a “clash of strangers”. This echoes American feminist and psychologist Carol Gilligan’s insight that relationships between intimates and strangers are governed differently. In general, ethics governs intimate relationships and law those between strangers, consequently, when an intimate relationship breaks down, as in divorce, the law displaces ethics. This same shift from ethics to law can be seen in the context of pregnancy in relation to the ethics governing a wanted pregnancy as compared with the law of abortion governing an unwanted one.
Snead, however, disagrees with the Court that pregnancy is a “stranger relationship” and argues that the claims on us – for instance, a pregnant woman - of some others of us – for example, a fetus/unborn child - are based on relationship, not consent and, therefore, we can have unconsented to obligations to those others. He quotes the philosopher, the late Hans Jonas, that “utter helplessness demands utter protection”. Snead says this means the concept of autonomy adopted by SCOTUS needs to be reframed to accommodate the “uncalculated giving and grateful receiving that are necessary for the survival of embodied beings”. In other words, to protect and promote human flourishing we must safeguard “life-giving networks of relationships” and not just individuals. To achieve that, Snead concludes, the “law must encourage the cultivation of the moral imagination”. I could not agree more strongly (Margaret Somerville, “The Ethical Imagination: Journeys of the Human Spirit”, 2006).
Respect for individual autonomy is an important ethical and human rights requirement. Problems with it arise only when it is treated as the sole requirement for judging what is ethical or, at the least, the one always to be given priority. This results in the claims of individuals not being balanced by adequate concern for the “common good” or, indeed, any consideration of what protecting and promoting the latter requires (Margaret Somerville, “Bird on an Ethics Wire: Battles about values in the culture wars”, 2015).
Moreover, as “expressive individualism” recognises, individuals’ feelings, intuitions and preferences are relevant to ethical decision making, because they are important “human ways of knowing”, but, again, they are not the sole determinants of what is or is not ethical.
As Professor Snead so amply demonstrates, Public Bioethics is a complex, contested, and conflictual domain and resolving the conflicts ethically is vital because they concern the zero-sum game of life and death. His book, “What it means to be human”, is a very important contribution to undertaking a much deeper exploration of what is required if we are to be ethical individuals, communities, institutions, and societies. It is essential reading for bioethicists. For others, while it is certainly not bedtime reading, I believe that most will find “the game is worth the candle”.
Margaret Somerville is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor Emerita in the Faculty of Medicine, and Founding Director of the Centre for Medicine, Ethics and Law Emerita at McGill University, Montreal.
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