First, Too Late: Priority, Laterality and Transversality in the International Governance of Human Genome Editing

Peter Mills, Nuffield Council on Bioethics

"First things first" has always seemed to be a good maxim for orderly and responsible progress. Learning to walk before trying to run. Building firm foundations before erecting a superstructure. Deciding whether to act before deciding how to act. 

"First things first" seems to be a good principle for technology governance because antecedent conditions both enframe and inform, constrain and shape, possible future states of affairs. For this reason, the question of priority seems to be crucial. It seems consequential, for example, whether applied research is framed by societal challenges and public moral discourse or overrun by the Jagannatha chariot of technological momentum. 

For the technologies of genome editing, and heritable human genome editing (HHGE) in particular, the question of priority has threatened to deteriorate into a struggle between two cultures. One faction offers to map out a translational pathway for responsible innovation, bracketing for later consideration the question of whether it should be followed at all. This is, broadly, the gambit embodied in 2020’s NAS/Royal Society International Commission report. The alternative approach is embodied by those who have supported a moratorium on heritable human genome editing in order to provide prior opportunity for a broad societal debate on whether the technology should be implemented. These include groups of scholars and researchers from across the academy, along with international organizations such as UNESCO  and the Council of Europe.

The pathway approach seems objectionable because it transparently anticipates–captures in advance–the objective to be achieved while preemptively foreclosing other pathways (or the pathways of others). It is, in a lexically strict sense, arrogant, though it is (again, strictly) insidious rather than peremptory, since it operates in a space of discourse marked as subjunctive. Furthermore, despite its own protestations, the question of how in the International Commission report is penetrated by questions of value that its acroamatic conditions merely hold at bay. These reappear at precisely the point at which it seeks to articulate with the world of practical experience, through a fundamental equivocation at its core, exemplified by the floating concept of responsibility on which its claim to authority rests (for more on this point, see my blog on the subject). The outside is inside. The questions of how? and whether? close into a loop.  

Like the International Commission, the framing of prohibitive legal instruments such as the Council of Europe Convention on Human Rights and Biomedicine (the "Oviedo Convention") also put the ethical questions into abeyance. It is clear from the preparatory documents that, while the Convention contains a prima facie prohibition on HHGE, it results from a temporizing agreement rather than a moral consensus; furthermore, it is clear that such moral consensus as there was was not opposed to HHGE but only to certain uses. These, however, were not or could not be satisfactorily articulated. Since the appearance of first-generation biotechnologies in the last century, this essential equivocation, buried beneath the uncontested boundary that the legal instrument defines, has been awaiting the appearance of a serviceable technology to resurface. As with the International Commission report, this equivocation resurfaces through the anticipated articulation with the world of practical experience but, this time, in expectation of technical achievements rather than the overcoming of moral aporia. 

What I think of as the question of "geo-ethics" is, in space, what the question of priority is in time. Here the concern is not that the question of whether should precede the question of how but that it will be answered "elsewhere" before it is answered "here." This presents the practical question of whether what is available in one territory or jurisdiction should be accessible to people in another. The problem of geo-ethics is the problem of managing normative differences in a world in which knowledge, people and technologies can move with little friction across national and jurisdictional boundaries (for more on this, see my piece, "Lame Ducks Might Fly"). 

A significant proportion of states, including the 29 European states that have ratified the Oviedo Convention, capture HHGE in explicit prohibitions or start from the position that it is not permitted. It is worth appreciating here the different orientations in common law and civil law jurisdictions in relation to the significance of non-prohibition and non-permission. The widespread non-permissibility of HHGE is shown by a recent study of the global policy landscape, which improves substantially on previous surveys of international law and regulation in terms of scope. What is still lacking is the deep engagement with local regulatory idioms, cultures and traditions needed to unpick the complexes of documents, discursive practices and structures of authority that make, for example, the force of ‘guidelines’ so radically different in China and the USA. 

I was originally prompted to think about the question of geo-ethics in 2016 by an invitation to describe the "global position" on genome editing. The aim was to explore the forces and modes that were effective in the geographical transmission of norms relating to CRISPR-Cas9-based technologies, and to explore these on two axes: first, relations between one nation, jurisdiction, community, region, etc. and another (or others), and, secondly, between the local and the global, the part and the whole. 

It is a virtue of the international human rights project, advanced by bodies like the Council of Europe and UNESCO, to provide a recognized normative framework for the restless elaboration of relations between the values that its instruments imperfectly enshrine, the unfolding of scientific knowledge in the world and the emergence of world-shaping technologies. This elaboration, however, takes place largely through the choreographed interactions of plenipotentiaries that distill the interests of publics and peoples.

Public debate makes sense in relation to national policy because it corresponds to both a marshaling public interest and the territorial scope of the most obvious mechanisms for governance. Whereas, in a well-functioning democracy, alternative perspectives remain in play as a source of immanent and continuous critique, a source of challenge and renewal, they may not become visible in international dialogue because of the emphasis on differences of national policy or of research conduct and culture. 

What has been missing is a venue for the expression and comparison of excluded interests, insights and values, those that are often unrepresented in the preeminent venues of international dialogue on HHGE: of the Republic of Science and of international human rights institutions. Such a venue is necessary to open up some of the unexamined acroamata that form the latent conditions of the audible dialogue. These include things like individualistic assumptions about procreative freedom, alternative ways of understanding genetic relatedness, parental preferences, genetic difference, existential threat and how these are valued in different cultural, political and faith settings. 

Our values shape technology; technology shapes our values: there are no "first things." The concretization of biotechnology in experience is the assembling of knowledges, practices, products and applications (see the Nuffield Council's Emerging Biotechnologies: Technology, Choice and the Public Good). A socially responsible approach to biotechnology that strives against exclusion (of values from the discourse on science and technology) or suppression (of dissensus in the formulation of public and international governance of innovation) is oriented neither in terms of priority (the order of conditions and conditioneds) nor laterality (relations between jurisdictions) but transversality: to connect what is inside–what is assumed, included, accepted in the authoritative discourses–with its outside–what is overcoded, rectified, unheard. A Global Observatory offers a venue for reflection on these essential but neglected conditions affecting and affected by emerging biotechnologies like human heritable genome editing.