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administrative record and form the basis for judicial review. Knowing this, the agency will likely resist the temptation to ignore the consultation results. 15 Critics may argue that even if an agency proposes a rule inconsistent with the outcome of a consultation process, the public is unlikely voice its disagreement through notice-and-comment, either because it won’t notice the agency’s disregard for public sentiments, or simply because it won’t care. For this strategy to succeed, several fairly implausible requirements must be met. Public consultation should be a low-key affair with little or no media visibility. This is very unlikely, given the public nature of most bioethical controversies. Even if the media and the general public are not paying attention, organized interests groups are. These groups will immediately spot any inconsistency between consultation results and proposed new rule. In their comments to the agency, they would demand that the agency provide a rationale for its choice. These are also the groups most likely to ch<strong>all</strong>enge a new rule in court should they come to the conclusion that the agency has no reason to disregard the outcome of a consultative process. For these reasons, it would not be rational for the agency to assume that “bureaucratic drift” will go unnoticed. 16 Our discussion so far was based on the assumption that a process of public consultation will produce a clear and unambiguous outcome. This may not always be the case, however. A divided public – i.e., a situation in which any given policy proposal is approved and disapproved by roughly 50 percent of the public – would afford the agency considerably more discretion. Should agency discretion be considered problematic? Does this amount to the breakdown of a central mechanism of accountability? Most likely not. To the extent that the public is genuinely divided and/or ambivalent about a new reproductive technology or a revolutionary line of research, the agency could choose between two strategies. It could determine that it should move ahead and propose a policy that more closely reflects the preferences of organized interest groups. This would not be a case of agency capture, but of exercise of legitimate regulatory authority constrained by the enabling statute and Congressional intent. Alternatively, the agency could decide that it would be inappropriate to deprive the public of the opportunity to debate the pros and cons of a new biomedical development, and simply propose a moratorium. As a matter of practice, it is very unlikely that the agency, after consulting with the public, will be left without guidance. It is certainly true that most people entering a consultative process are unlikely to have strong, informed views about a new biomedical development. But the empirical record suggests that citizens, if given an opportunity, are perfectly capable of developing informed opinions. And while it is certainly possible that a given policy option will 15 16 It is worth noting that agency accountability is the result of both public consultation and notice-and-comment. Absent notice-and-comment, the agency would face fewer incentives to abide by the outcome of a consultative process. On the other hand, rule-making without public consultation would greatly diminish the effectiveness of notice-and-comment as a mechanism of accountability. The preceding discussion is based on the assumption that a rational choice model is an adequate representation of agency behavior. It would certainly be possible to analyze agency behavior from a somewhat less cynical standpoint, but a more sophisticated modeling exercise is very unlikely to affect our conclusions. 325
divide the public, it is quite unlikely that the general public will be divided on each and every available choice. As our discussion in chapter 8 has shown, more often than not, a divided public reflects inadequate alternatives rather than underlying deep divisions. 326
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Beyond Bioethics: A Proposal for Mo
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(ARTs) as well as laboratory resear
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issues raised by new biotechnologie
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human and animals cells, tissues, a
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(CLIA) of 1988 and, more importantl
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the activities of both private and
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themselves whether or not to eat fo
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5.5 Creating a New Regulatory Insti
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egarding reproductive biomedicine t
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to represent constituencies that ar
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“Deliberative panels,” the term
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participants may be able to engage
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outer limits of the right to privac
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About the Authors Francis Fukuyama
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1.1 THE CHALLENGE OF NEW BIOTECHNOL
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7.1 TRADITIONAL REPRODUCTIVE TECHNO
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Shortness as a Psychological and So
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1 Introduction This report presents
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them only on the basis of safety an
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esearch, and clinical and medical p
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Congress’ powers over scientific
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of newborns; destruction of an embr
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1.6 Bibliography Evans, John H. Pla
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endogenous growth hormone secretion
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slippery slope toward blanket uses
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proposed by Eli Lilly - a rather su
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Committee tended, predictably, to r
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coincidentally, she was also one of
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2.5 Bibliography American Academy o
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• Limits on the commercialization
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the sick and relieving the pain and
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give for opposing this practice var
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We recognize that for some people,
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3.6 Bibliography Baruch, Susannah,
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taxonomies are likely to exist. For
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that an investigator may not be abl
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ecome part of this complex transact
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These concerns are not unfounded, a
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cryopreservation a good example of
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A 2003 news story published in Popu
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episode. Reputational incentives ar
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Would you approve or disapprove if
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strong preference for a mixed famil
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controversial not because it provid
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esearch. On the other end are situa
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nucleus of a somatic cell, such as
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And we have to have some degree - a
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father. The experiment could also l
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The availability of oocytes in larg
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and the tail of serpent. In biology
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our view, that the scientific commu
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Bonnicksen, Andrea. "Innovative ART
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Kubawara, Y., T. Okai, S. Kozuma, N
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Shamblott, Michael J., Joyce Axelma
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116
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iotech companies or university clin
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As an infrastructure of quality ass
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toward implementing a comprehensive
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clinical research, 22 while the FDA
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principles of good governance as fe
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sustainable way. Examples include c
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cloning to register with the Depart
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kind of cloning or they limit the b
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The federal government has been rel
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includes ethicists, scientists, men
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Society for Assisted Reproductive T
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Reproductive Endocrinology Subspeci
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safety guidelines aimed at ranking
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elatively mundane. 67 For example,
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Fallon, Peter, and Zafiris Tzannato
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148
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6.1 Italy - from the “Wild West
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also prohibited. 13 The law activel
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selection technologies, but only fo
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eproductive technologies in section
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Neither the RIHEA nor its explanato
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inspect all licensees, or how often
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(principle (e)). 43 Canada affords
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traditional views of reproduction,
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y the Canadian authorities and the
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esearch on human embryos. It requir
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This argument is not likely to conv
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• Maintain a formal register of i
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The remaining three positions reser
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type of research. The HFEA is requi
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The relevance of the Code of Practi
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180
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182
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of saving the life of an older sibl
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procreative right, unlikely as it i
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assisted suicide, the Court has est
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or that there are an infinite numbe
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What is obvious is that the Court s
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generalizing from a strong but gene
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are not any societal traditions tha
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the First Amendment’s protection
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least preferable among all forms of
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Surrogacy 16 Donor egg 14 Donor spe
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To recap, the survey data shows a s
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Robertson, John A. Children of Choi
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media and from polling organization
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Before diving into the data, the me
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(126), and allowing parents to have
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esearch cloning. Two questions (150
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asked five times whether the public
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the creation of embryos solely for
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Our conclusions could be criticized
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about embryonic stem cells? The ans
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were essentially split (44 percent
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228
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coincidence that U.S. scientists id
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assertion of jurisdiction in this c
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of the opposition to genetically mo
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More generally, it is shortsighted
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Process.” 19 According to their i
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another branch of medicine. ART pra
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242
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Navasky, Victor S., and Christopher
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to extract benefits for their membe
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entails. 3 CAMR, a very large and h
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of scientists in these debates woul
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elatively modest. Canada and Austra
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ighteous manner, justifying their c
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eaching out to the public, the agen
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ultimately benefits more the patien
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In many cases, these efforts are pe
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The rationale for including stakeho
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years away. Again, no scientific ba
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The view that deliberation can shar
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members and instructed to reach con
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Deliberation: This requirement has
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One may wonder why public hearings
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Page 297 and 298: agency’s ability to implement Con
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Page 317 and 318: Morrison, Alan B. "How Independent
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