Bioethics after Brexit

It is too soon to know how the crisis that has been created by Britain’s vote to leave the European Union will play out. But it is worth considering that the field of bioethics has a grave stake in the outcome. Modern bioethics is to a great extent a product of the liberal international system put in place after World War II.

In 1945 the four Allied states conducted war crimes trials of the Third Reich’s surviving political and military leaders. Though some advocated simple executions a decision was made instead to send a message about the post-war rule of law. In spite of widespread doubt that this would be anything but a “show trial” based on victor’s justice, several of the defendants were acquitted. Although the other powers did not participate in subsequent trials in Nuremberg, the United States decided it was important to treat other ardent Nazis who were indicted for war crimes in a similar orderly fashion.

The most famous of the other trials was that of 23 Nazi doctors and bureaucrats who were implicated in human experiments in concentration camps. What was expected to be a case that could be completed in a few weeks took months, because the defense argued that there were no internationally recognized rules for the conduct of human experiments. Ultimately the court returned to the grounds for the prosecution case, which was murder and other outrages against human beings, not the violation of research ethics. As a result of the “doctors’ case,” the judges decided that part of their decision should be a corrective to the apparent absence of international rules. That document has come to be known as the Nuremberg Code.

The Code was only the first in a line of medical ethics documents that have come to be part of the post-war system, including the World Medical Association’s code of ethics in 1949 and its Declaration of Helsinki, first promulgated in 1964. The Council on International Organizations of Medical Sciences first adopted its International Ethical Guidelines for Biomedical Research Involving Human Subjects in 1993. In 2005 the United Nations adopted the Universal Declaration on Bioethics and Human Rights. Other international treaties and conventions bear on bioethics, including the Geneva Convention of 1949 and its annexes, the Biologic and Toxin Weapons Convention and the Chemical Weapons Convention. The World Trade Organization, whose responsibilities include oversight of intellectual property rights like those involving drugs and devices, is the product of an agreement among 123 countries.

All of these standards and institutions have their faults and limitations. Many ethics-related guidelines are honored more in the breach than the reality and they are liable to be seen as favoring the “haves” over the “have nots.” There are no enforcement mechanisms for guidelines like the Declaration of Helsinki and since 2008 the U.S. Food and Drug Administration no longer refers to them. The International Court of Justice in The Hague is plagued by jurisdictional questions and the U.S. has never joined the International Criminal Court. Nonetheless, these arrangements provide some frameworks for questions that involve sovereign states.

The post-war “European project” that is threatened by Brexit, one aimed at preventing repetition of the hundreds of years of bloodshed on the Continent, is of course only one part of the international order. But considering the political, financial, and cultural centrality of Europe it is a critical one. It appears that the nationalist and populist sentiments roiling the Northern Hemisphere are implicitly rebellions against not only globalization but also the global elite and “expert” class that have promoted and directed it. That class very much includes the academics, advocates, policy wonks, and regulators who have a hand in bioethics.

One can’t say what this all might mean. Over the next months and years the British might find a way to resolve enough of their differences with the EU to remain a quasi-partner and the other members might fend off nationalist movements in their own countries. In that case the crisis might have passed. But if Brexit is the first crack in the liberal international system to be followed by a more general breakdown, some of the central tenets that underlie post-war biomedical ethics might be at risk, including the authority of some of those conventions and institutions and even assumptions about values like universal human equality.

The point is that modern bioethics is very much a creation of the era after World War II, one dominated by the U.S. and Western Europe. As such it is far from immune to the threats to that international system, though the implications may take years to become evident.