I NSTITUTIONAL D ESIGNS TO F ACILITATE D ELIBERATIVE

A. Some Concrete Suggestions

Since the idea of deliberative democracy emphasizes mutual respect and on-going communication, whether a commission’s recommendation becomes the final law or policy may not serve as a good indicator to evaluate its performance. Nevertheless, what then are the important factors for such commissions to facilitate deliberative democracy?

In studying different types of bioethics commissions in the U.S., the Committee on the Social and Ethical Impacts of Developments in Biomedicine established by the Institute of Medicine provided three groups of criteria of success that we think are quite enlightening. First, the commissions must have intellectual integrity, which means that their analysis must be logical, the information they rely upon must be well-informed and used with sound judgment.⁵⁷ Second, the commissions must be sensitive to democratic values, which includes showing respect for affected parties, ensuring that diverse perspectives can be represented in the discussion, and openness. ⁵⁸ Finally, the commissions must be effectiveness in communication with its audience, such as providing well-written reports that

55. SHEILA JASANOFF, DESIGNS ON NATURE: SCIENCE AND DEMOCRACY IN EUROPE AND THE UNITED STATES 195 (2005).

56. Annas, supra note 6, at 20-21.

57. Ruth Ellen Bulger et al., Criteria for Success, in SOCIETY’S CHOICES: SOCIAL AND ETHICAL DECISION MAKING IN BIOMEDICINE, supra note 40, at 150, 153-55.

58. Id. at 155-59.

policy-makers or the public can understand, and the commission must have authority from the sponsoring body and earn respect from the public with the soundness of the report.⁵⁹

Similarly, Jonathan Moreno once summarized the criteria raised by the U.S. Congress’s Office of Technology Assessment (OTA) for a commission to operate successfully:⁶⁰

(1) Relatively free of political interference.

(2) Flexible to address issues.

(3) With processes and findings opened and well-disseminated.

(4) Formed by members that have diverse backgrounds and experiences, and are free of ideology.

(5) Not mandated to handle issues like abortion that might be “a priori” divisive.

(6) Adequate funding that allows enough staff to evaluate different perspectives with relative objectivity.

Nevertheless, many of these criteria have to be translated into institutional design in order to be useful for our discussion for national bioethics commissions. Hence, based on the procedural and substantive criteria raised by theorists of deliberative democracy and the foregoing observation of the promises and pitfalls of bioethics commissions, this section attempts to make concrete evaluations of how can they facilitate deliberative democracy.

Based on their significance for commissions, we divide our suggestions for the institutional design of national bioethics commission into three factors: substantive factors, constitutive factors and finally, capacity and impact factors. We first explain their importance, and then argue that, the more requirements a commission fulfills, the more they will be able to facilitate deliberative democracy (Table 1).

1. Substantive Factors

By substantive factors, we refer to criteria that the substance of the commissions’ recommendation must meet. These serve as a minimum requirement for commissions to be able to facilitate deliberative democracy at all. Without meeting these criteria, the commission risks its own credibility in becoming rubber stamps of its sponsoring agency that no one would care about.

59. Id. at 159-60.

60. JONATHAN D. MORENO, DECIDING TOGETHER: BIOETHICS AND MORAL CONSENSUS 83 (1995).

(a) Accuracy in Facts & Integrity in Analysis

Of all the substantive criteria a commission must meet, the accuracy of facts and logics in analysis is the minimum. The foregoing discussion of Bush’s President’s Council on Bioethics manipulating scientific information for its own political agenda best demonstrates this lesson. When the editorial of Bioethics criticized it of playing partisan politics, they also pointed out that “the U.S. National Council on Bioethics . . . has well succeeded in reducing what has once been an influential voice in bioethics to pretty much that, a partisan political loud speaker that is more or less ignored by bioethicists and ridiculed in mainstream mass media.”⁶¹

(b) Declaration of Conflict of Interest

Given the technicalities often involved in bioethical issue, it is not always easy for lay person to evaluate the foregoing integrity of a commission. Thus, it would be helpful if the public can be informed of possible conflicts of interests that may affect the members’ integrity. This is most crucial for scientific experts because those who are most knowledgeable of cutting-edge technologies are often those involved in them. Depending on the availability of alternative candidates and balancing power of other members, sometimes it may not be possible or appropriate to exclude them from serving as a member in the commission. Facing this situation, the Human Genetic Commission of the U.K. requires its members to disclose their interests that might have any concern with the issues discussed, and withdraw from the meeting if their interests are direct and pecuniary or belongs other categories of interest that are prohibited from participating.⁶² As this would influence the content and the formation of the Commission’s recommendation, the requirement to declare existing conflicts of interests serves a different purpose from the requirement of transparency that will be discussed below in the constitutive factors that influence the performance of a bioethics commission. A requirement to disclose conflicts of interests helps to ensure the neutrality of members, and also help establish the public’s trust in the commission.

2. Constitutive Factors

The foregoing requirement of intellectual integrity in the commission’s report is only a minimum requirement. Without proper institutional design, a commission could be biased from the beginning it sets its agenda, gather its information and conduct its debate, and will influence the constitution of the

61. Schuklenk, supra note 5, at ii.

62. Human Genetic Commission, Code of Practice for Members, http://www.hgc.gov.uk/Upload Docs/Contents/Documents/CODE%20OF%20PRACTICE%20FOR%20MEMBERS.pdf (last visited Aug. 31, 2009).

Commission’s substance. Hence, we further propose the following requirements in a commission’s institutional design:

(a) Diversity of Membership

An important feature for deliberative democracy is its commitment to allow all whose interests are affected to be heard. Hence, a necessary requirement for national commissions to realize the ideal condition for moral debate would be to bring in members that can reflect viewpoints of different perspectives. This institutional design corresponds to Gutmann’s principle of reciprocity and Cohen’s principle of deliberative inclusion discussed in the earlier part of this article that is most crucial to facilitate deliberation.

Again, George Bush’s PCB provides a lively example of what happens when the member is not diverse. As it reshuffled its membership more and more conservatively, its recommendation eventually was largely ignored by bioethicist and is often ridiculed by mass media.⁶³

Nevertheless, whether these members should be elected representatives or experts familiar with the perspectives at stake is a more difficult issue.

One model is to elect representatives from interest groups whose interests are affected, and to see the resulting decision as a compromise among different interest groups. But Dodds and Thomson argue that people may uncritically determine who gets to be represented simply by historical or cultural assumptions without sound justification.⁶⁴ This mentality tend to make lawyers or priests that have credential or higher social status one of the member, yet fail to include representatives from people with disabilities that lack credentials for their status, but whose voice may be more critical in bioethical issues. Hence, selecting members according to this model will allow representatives to pre-frame the debate of the issue and leave more pervasive problems and anxieties unaddressed.

Because of this reason, Dodds & Thomson favor a “contested deliberation model” where the issues to address and the representatives considered must be subjected to community hearings to before they can be appointed.⁶⁵ This model sets a high standard for diverse membership of these commissions, but they did not provide more information on how to prevent the issue of pre-framing in this additional procedure that is subject to public contest.

In any case, openness in the selection and appointment procedure would be useful to ensure the diversity of membership. In this regard, the Human Genetic Commission of the U.K. has opened its membership to anyone who cares to volunteer.⁶⁶ Although this does not guarantee those who volunteer

63. Schuklenk, supra note 5, at ii.

64. Dodds & Thomson, supra note 11, at 334.

65. Dodds & Thomson, supra note 11, at 335-37.

66. We gained this information from personal interview with Professor John Harris, a Member of

do become members, it may broaden the candidates’ pool and allow more people that are less socially visible but motivated enough to contribute their perspectives in the deliberation.

Yet, additional design would be needed to overcome the barriers of achieving a diverse membership. Cass Sunstein, for instance, raises a concern that members of a deliberating group may become more extreme after the process of deliberation, because people with similar opinions tend to reinforce each others’ opinions and opinions from people who are socially disadvantaged tend to be ignored in the group dynamic.⁶⁷ Hence, while he advocates that deliberation must have opinions that can reflect those of relevant groups, it is desirable to make room for enclave deliberation among socially disadvantaged people so that they can form enough confidence and strong arguments for deliberation among a more diverse group.⁶⁸

Facing these challenges, commissions should explore creative ways to broaden the scope of perspectives and opinions that can be considered beyond diverse membership. For instance, when a particular issue is most pertinent for minority communities, commissions can invite their representatives to participate in the discussion, or create sub-groups that include both members and external participants to look into the specific issue. In other occasions, commissions can also conduct public consultation to anticipate concerns of the general public that may not be reflected in the commissions’ membership. If necessary, commissions can even commission experts or social groups to present papers that can reflect important information or values that may be neglected in the membership.

Ultimately, there will also be a limit as to what perspective can be represented in a commission, and since people’s time and attention is limited, an appropriate level of heterogeneity should exclude opinions that are too invidious or implausible.⁶⁹ With limited members able to participate and the foregoing group dynamic that tend to reinforce majoritarian perspectives, these commissions may not be able to realize ideal condition of deliberation or reach any consensus. But at the minimum, diverse membership can foster a communicative democracy where people reach more understandings that allow better deliberation and cooperation in future dialogues.⁷⁰

the Commission. Although we cannot find official documentation from HGC’s website, similar information can also be found in Michael Fuchs’ survey of HGC. See FUCHS, supra note 33, at 31.

67. Sunstein, supra note 18, at 27-34.

68. Id. at 19-24.

69. Id. at 19.

70. Iris Marion Young, Communication and the Other: Beyond Deliberative Democracy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL, supra note21, at 120, 128-33.

(b) Transparency

The institutional requirement of transparency corresponds with Gutmann’s principle of publicity. Ideally, this would require publication of members list so that their integrity is subject to public scrutiny after they assume the responsibility. Moreover, to be truly accountable to the public and facilitate deliberative democracy, commissions should make an effort to make the content and process of their reasoning as transplant as possible.

Such effort would include disclosing basic facts that they rely upon in languages understandable to the general public, detailed minutes of the process of discussion, and a well-written recommendation that reflects the perspectives taken into consideration, pros and cons that was being balanced, and the final conclusion. Particularly when there is serious disagreement among the members, commissions should also allow members of minority opinion to present dissenting opinions in the final report. The more transparent a commission’s operation is, the more thorough it can be subject to public scrutiny, hence the more accountable and trustworthy it will become.

(c) Public Participation

Some commission’s authorizing statute requires them not only to report to governmental agencies, but also to consult public opinions. For instance, the National Bioethics Advisory Commission of the U.S. was not required to incorporate public participation, but Australian Health Ethics Committee was legally required to do so.⁷¹

For public consultations to be meaningful, it is important to keep the public informed in advance of the basic facts involved, the issues that require deliberation, the agenda and timetable of the consultation, and ensure that relevant social groups have a chance to participate. Indeed, Dodd &

Thomson argues that these formal consultations usually do not allow genuine public participation, because the scope of public response usually are very limited, and only very limited groups will be approached and asked to respond.⁷²

Because of the foregoing limits, Dodds and Thomson’s “contested deliberation” model requires a three stage procedure where the issue, membership and deliberation will be each subjected to public scrutiny and that the final recommendation must take into account the viewpoints presented.⁷³ But again, although one can appreciate the extensive procedure that increases the opportunity and intensity of public participation, it is hard to see how they can avoid the public participation from becoming mere formalities.

71. Dodds & Thomson, supra note 11, at 330.

72. Id. at 335.

73. Id. at 335-37.

In fact, there may be a limit to what can be transparent and the degree of public participation. When Gutmann & Thompson raise the principle of publicity as a substantive principle to regulate deliberative process, they make it clear that this principle is acceptable only as a presumption, since sometimes secrecy is necessary.⁷⁴ Other than occasions that involve individual privacy, the most important justification for secrecy here is when secrecy is beneficial for deliberation.⁷⁵ For instance, people tend to be more creative and open without pressure from the public that tend to have high expectation.⁷⁶ Moreover, it is also easier for people to admit their ignorance and their need for more information without being embarrassed in the public.⁷⁷ Worrying that such justification may be abused, Gutmann &

Thompson thus argue that for such secrecy to be justifiable, in most situation an operating government can and should justify the necessity of secrecy to its public in advance, and subject its outcome to scrutiny after the decision is made in secrecy.⁷⁸

Indeed, to realize the idea of deliberative democracy, it is important not only to make sure that public participation is not compromised by unjustifiable excuses, but also to make sure that it is effective. This would require some innovation. For instance, to have a better grasp of experiences of people with genetic diseases, the Human Genetic Commission has invited people with such condition to volunteer as member of their consultative panel. Using different formats of public participation for different occasion and purpose, the Danish Board of Technology of Denmark has also developed formats such as citizen panel, consensus conference, and various other efforts to inform the public and simulate meaningful public participation.⁷⁹ Ultimately, to facilitate deliberative democracy, at least the final report must give reasons as well as its recommendations. Requiring more public consultation through effective forms would also reinforce representation of minority perspectives.

3. Capacity and Impact Factors

Once commissions establish intellectual integrity and have favorable constitutions that are conducive to deliberation, they would further require resources and legitimacy to enjoy political influence. We think that it would

74. GUTMANN & THOMPSON, supra note 24, at 95-127.

75. Id. at 114-26.

76 . Minou Bernadette Friele, Do Committees Ru(i)n the Bio-Political Culture? On the Democratic Legitimacy of Bioethics Committees, 17 BIOETHICS 301, 311 (2003).

77. Id. at 312.

78. GUTMANN & THOMPSON, supra note 24, at 115-17.

79. For more information, see the Danish Board of Technology Website, http://www.tekno.

dk/subpage.php3?page=forside.php3&language=uk (last visited July 29, 2009).

be desirable for them to have independent funding and staffs, enabling statutes, high degree of consensus, and most importantly, sponsoring agencies’ duty to respond to their recommendations.

(a) Independent Funding and Staff

Deliberation is costly. The federal government of U.S. authorized Bush’s PCB $5 million per year for four years, and during the 39 months of its operation, the members met 28 times which each generally spend 2 days, and published 17 reports.⁸⁰

While having funding and staffs does not guarantee a well-reasoned recommendation from an unbiased commission, it would be almost impossible without independent funding and staffing. A commission with diverse membership, transplant operation and wide spread public consultation would need a capable group of administrative staffs to coordinate conference and public consultation; it would also need research staffs to help prepare the basic facts and issues. Without independent funding and staffs, their influence will be seriously limited.

(b) Statutory Foundation Providing Clear Terms of Reference

Early commissions in the U.S. had greater policy impacts and usually had statutory enabling acts.⁸¹ Later commissions, including the National Bioethics Advisory Commission and the President’s Council on Bioethics were established by executive orders.⁸² These enabling statutes or executive orders usually stipulate the commissions’ mission, and corresponds to Gutmann’s principle of accountability. Although this is not sufficient for a bioethics commission to have political influence, it is a necessary requirement in a modern constitutional democracy, and may also help to establish authority in its recommendations.

(c) Degree of Consensus and Room for Dissenting Opinion

In a liberal democratic society, moral disagreements are bound to exist in bioethical policies such as those in human embryonic research. According to John Rawls, when there is a conflict in what constitutes the “good” a society ought to achieve, the decision should not require everyone to agree.

Rather, it should be decided by a procedure that will lead to a decision that

80. Ruth Ellen Bulger et al., Conclusions and Recommendations, in SOCIETY’S CHOICES: SOCIAL AND ETHICAL DECISION MAKING IN BIOMEDICINE, supra note 40, at 168, 191.

81. For instance, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research was created by the National Research Act (Pub. L. 93-348) and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research was created by 42 U.S.C. § 300v (2006).

82. Bill Clinton established National Bioethics Advisory Committee with Executive Order 12975 in October 1995 when he became the president of the United States. Yet, its charter expired October 2001. By then, the new President George Bush appointed a new committee name President’s Council on Bioethics by executive order 13237. For more information on the history of these two committees, see JASANOFF, supra note 55, at 179-80.

most reasonable citizens can accept.⁸³

Hence, for commissions to come to a decision, majority is necessary, but not sufficient. Well reasoned is even more important than majority. In controversial issues, mere majority without reasoning is bound to stir public outcry.

A consensus among diverse members of a commission certainly would increase the persuasiveness and influence of their recommendation.

Nevertheless, it is also important how dissenting opinions are handled in the deliberation. The President’s Council on Bioethics’ recommendation lists dissenting opinion as well as the majority opinion⁸⁴ and also publishes personal statements where members summarize their position and reasoning respectively.⁸⁵ This subjects members to public scrutiny not only as a group

Nevertheless, it is also important how dissenting opinions are handled in the deliberation. The President’s Council on Bioethics’ recommendation lists dissenting opinion as well as the majority opinion⁸⁴ and also publishes personal statements where members summarize their position and reasoning respectively.⁸⁵ This subjects members to public scrutiny not only as a group