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  • Five Principles for the Regulation of Human Enhancement
  • Roger Brownsword* (bio)

I. Introduction

This article starts with two questions, both of which relate to the adequacy of the “regulatory environment” (Brownsword 2008a; Brownsword and Somsen 2009; Brownsword and Goodwin 2012) as that environment bears on the development and use of “human enhancements”; and, in order to get at once to these two questions, I will not pause to reflect on either how we should define “human enhancement” (I take it that we are discussing performance-enhancing technologies as well as performance-enhancing drugs) or whether a clean line can be drawn between therapy and enhancement. The first question is whether we should be trying to formulate a set of regulatory principles that apply across-the-board, to enhancement in all contexts (such as, in relation to elite sport, employment, education, the military, and so on), or whether instead we need to craft bespoke regulatory principles for each context. The second question is whether we would be well served by a set of five (broadly liberal) regulatory principles that rely on notions of “harm” (not “harming” others), “consent” or “informed consent”, and “best interests”. In the event, it is the second question that tends to dominate the discussion, as a result of which the first of my questions gets much less attention in this article than it merits. This in no way reflects my sense of the relative importance of these questions and, on another occasion, I hope to correct the imbalance that is evident in my present consideration of the issues. [End Page 344]

The article is in four principal parts. First, I state the five candidate principles. Second, adopting the (internal) position of a friendly critic, I point to some problems with these principles. Third, adopting the (external) position of a less friendly critic, I indicate some further objections to these principles. Finally, I offer some short reflections on the way forward. My overall conclusion is that both the candidate principles and the counter-principles favoured by less friendly critics lack stability and that, without a rationally defensible anchoring point, the legitimacy of the principles that are taken up in the regulatory environment (even if workable and generally accepted) will be open to criticism.

II. Five Regulatory Principles

In “liberal” polities, much regulatory thinking is driven by the principle that the conduct of competent agents should not be constrained unless it is harmful to others (Savulescu and Bostrom 2009); and that, even if conduct is harmful to another, it should be permitted where that other agent has consented to the conduct. Where persons are not competent, liberals believe that relevant decisions should be made with a view to promoting the best interests of such persons. If we articulate these cornerstone principles in relation to the regulation of human enhancement, we have the following five principles:

Principle 1: A should not use enhancers if this would cause harm to B (or others).

Principle 2: But, if B has consented to whatever harm is caused by A’s use of enhancers, then A may use enhancers (B, having authorised A’s use, has no complaint if A then uses enhancers in a way that harms B).

Principle 3: B should not harm A by applying improper pressure (from coercion through to inducement) for A to use enhancers.

Principle 4: A may use enhancers if they are not harmful to anyone (to A or to B, C, or D, and so on) unless (in accordance with what I will call the “Corinthian principle”) A has consented to a code of conduct that prohibits or restricts the use of such enhancers. [End Page 345]

Principle 5: Where A is not decisionally competent, then: (i) A may use enhancers that are not harmful to anyone; (ii) A may not use enhancers that are harmful to others unless those others consent; and (iii) for all other issues, the decisive criterion is whether the use of enhancers is or is not in A’s best interests.

Although these principles have a familiar ring and sound plausible, we have not yet put them to the test. In the next two parts of the article, we can test...

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