From the event "Moral Bioprediction, Bioenhancement, and the Law: A Lecture by Julian Savulescu," on October 20, 2015. This lecture was part of a series of events cosponsored by the Center for Bioethics at Harvard Medical School, the Edmond J. Safra Center for Ethics at Harvard University, and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, with support from the Oswald DeN. Cammann Fund. For more information, visit our website at http://petrieflom.law.harvard.edu/events/details/law-and-moral-enhancement.

1. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Moral Science,
Decision-Making
and the Law

2. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Predicting violence
– In 2002, Melbourne resident Adrian Bayley
was found guilty of carrying out 20 rapes over
a 23-year period, and was sentenced to 11
years in prison.
– Seven years later, having completed a sex
offender treatment program, he was deemed
to no longer pose a threat to the public, and
was released on parole. Tragically, he went
on to sexually abuse and murder an ABC
journalist, Jill Meagher

3. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
The Guardian
» His history of repeated attacks on women have
raised questions over Victoria‘s parole regime, with
the state premier, Denis Napthine, saying the system
―failed Jill Meagher" and was reviewed.
» Bayley committed his first rape aged 18, when he
trapped a 16-year-old girl in his house before
assaulting her. Within a year, he had raped two other
women, one a hitchhiker. He was sentenced to five
years in prison in 1991, but was released after two
years.

4. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
The Guardian
In 2000, he embarked upon a series of rapes in
Elwood. He attacked five different women who
were working as prostitutes, each time parking his
car close to a wall behind a row of shops so they
could not open the door to escape.
» He was sentenced to 11 years in prison in 2002 but,
after completing a sex offender treatment program,
was released on parole in 2009.
» In February 2011, he attacked a man in Geelong,
breaking the victim‘s jaw and knocking him
unconscious. Bayley was handed a three-month
term, but he appealed against the sentence and his
parole was not revoked, allowing him to be free on
bail at the time when he killed Meagher in 2012.

5. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Jill Meagher, 29 years old

6. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Forensic Risk Assement
– inform initial sentencing decisions and parole
– whether to require offenders to participate in
monitoring or rehabilitation programmes post-
release.
– in 20 US states, risk assessment tools are
used to evaluate whether an offender is
subject to sexual predator laws and some
jurisdictions also permit indeterminate post-
sentence detention within the correctional
system on the basis of risk assessments.

7. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Risk Assessment Tools
• There are now more than 200 structured
tools available for assessing risk of
violence
1. Actuarial tools identify a list of risk factors which
are used to calculate a probability of reoffending.
2. Structured clinical judgement instruments also
list risk factors but allow for clinical discretion in
arriving at a final estimate of low, medium or high
risk.
•

8. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Predictive Value
• Reviews have found that the performance
of these tools is moderate at best
1. Positive predictive values (the proportion of
high risk individuals identified by tools who
actually reoffend) are typically below 50%.
2. Negative predictive values (the proportion of
individuals deemed low risk who indeed do
not re-offend) are normally higher, but failure
catastrophic (Bayley)

9. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Bioprediction of Violent Behaviour

10. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Bioprediction: MAOA

11. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Case Study: Brunner Syndrome

12. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
―Nonsense Mutation‖
• Single nucleotide (the coded building blocks of
DNA) was changed from a C to a T at the
936th base pair in the MAOA genetic
sequence of affected males
• Affected males completely lacked functional
MAOA protein.
• first evidence of a strong association between
disruption of a single gene and aggressive
behavior in humans.
Brunner et al. (1993a)

13. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Normal Variation
• Nonsense Mutation is rare
• 30% of MAOA alleles have 3 repeats
• 65% have 4 repeats
• 3 repeats =MAOA-low (MAOA-L)
• 4 repeats =MAOA-high (MAOA-H)
• Neither is predictive for aggression in later life

14. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Genes Plus Environment

15. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
2 Pathways

16. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Potential
• The knowledge of effects this gene might
lead to the ability to adapt interventions for
those with MAOA-L
– Ensure that the environment is not
encountered
– Supply drugs to mitigate the effects of the
gene X environment interaction
– PGD

17. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Ethical Use of Biomarkers
• Personally Beneficial. Benefit person with
the biomarker
• No Harm. Benefit others with no harm to
the person with biomarker
• Personal Risk/Community Benefit. Benefit
others with harm to person with biomarker
– Dependent on expected benefit and harm

18. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Personally Beneficial. To benefit
the person with the biomarker

19. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
E.g. For allocation of resources that have
certain benefits, but also risk of harm
• The UN Convention on Rights of the Child specifies that no child
should experience maltreatment
• May not be achievable/ difficult to detect with certainty
• Interventions (surveillance, separation of child from parents) carry
major risks
• If there is a higher risk of harm from non-intervention in one group
and a lower risk in the other, then the current threshold level of
maltreatment used to deem intervention justifiable might be too high
for MAOA-L and too low for MAOA-H

20. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
2. For mitigation of effects of
maltreatment
• how to distribute social services and foster care
• what type of care to provide
• e.g. A maltreated child with MAOA-L might
benefit from a foster caregiver with special
training to deal appropriately with impulsive,
aggressive behavior

21. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
3. For special provision of resources
• Mindfulness training
– helps individuals recognize and manage emotional impulses and
stress, is being recommended for general use in schools to deal with
life stresses (Williams & Penman, 2011) but also shows promise
specifically for helping individuals deal with violent impulses (Wright,
Day, & Howells, 2009).
• Omega-3 fatty acids (found in oily fish)
– are recommended for general healthy brain development and for heart
health, but they similarly show potential for specifically addressing
effects of MAOA-L (Hibbeln, Ferguson, & Blasbalg, 2006)

22. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
4. Mitigation of Responsibility
• Mitigation of responsibility in the law
• Already applied in
– Bayout (Italy): Reduction of sentence
– Waldroup (US): Reduced charge from
murder to manslaughter

23. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Current problems
• Lack of evidence linking the gene ×
environment interaction with the cognitive
neuroscience work on mechanism
• Lack of clear definition of provocation etc.
• Lack of evidence on how the biomarker
affects other groups
• May be other unknown interactions

24. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
No Harm: Benefit to others without
harm to the person with the biomarker

25. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
―Procreative beneficence‖
– Violent behaviour leads to worse life for the
offender
• Cannot guarantee environment
– Select for MAOA-H
• Might also be justified to benefit society
(procreative altruism)
– Genetic selection enables a genetic
intervention to ―protect the rights of its
members against violent assault‖ without
harming any existing person

26. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Type 3: Benefit to others but harm to
the person with the biomarker

27. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Dangers
• Unjust surveillance
• Over-investigation
• Preventive detention
• Harsher sentencing
– Lombroso: ―born criminals‖ should be
punished not in proportion to the
magnitude of their crimes, but rather
according to the threat of future crime
– Involuntary sterilizations that continued
into the 1970s as a part of the
eugenics movement (Buchanan et al.,
2000).

28. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
The Spectrum of Intervention
• Can intervene without extremes as above
– e.g. ‗Nudge strategies‘
• As a general rule, the least harmful and
liberty-restricting method of promising
efficacy should be employed first to
explore whether a reasonable reduction in
the undesired behavior can be achieved

29. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Example: Thalassemia

30. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Moral Enhancement
• Impulse control
– ADHD
• Sex Drive
– Paedophiles

31. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Ritalin and Criminality
• ADHD linked with increased risk of
criminality (MAO A have poor impulse
control)
• ADHD patients reduced crime rates whilst
on medication:
– 32% in men
– 41% in women
• Crimes occurred less often whilst on
medication
N Engl J Med 2012;367:2006-14

32. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Chemical Castration
• 9 U.S. states allows for the castration of certain sex
offenders
– Legislation in Georgia, Montana, Oregon, and Wisconsin
provides for chemical castration only
– California, Iowa, Florida, and Louisiana permit both
chemical and surgical castration
– Texas allows only surgical castration.
• In some cases optional and no link is made between
refusal to consent to it and further incarceration;
• In others chemical castration is mandated as a
condition of release
• Others mandated with no link to release

33. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Chemical Castration Europe
• Poland: Some offenders may be
mandated to be chemically castrated
• Belgium: offenders must consent to
treatment
– But if deemed a critical danger and refuses or
stops treatment, he may be re-incarcerated,
or not released

34. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
―there are substantial issues of liberty which...
could conceivably be threatened by any measures that
make the freedom to do immoral things impossible.‖
— John Harris
―The question is whether such a technique can
really make a man good. Goodness comes from
within.... Goodness is something chosen. When a man
cannot choose he ceases to be a man.‖
— Anthony Burgess, A Clockwork
Orange

35. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
―… to imagine that [our moral] capacities could be
deepened in a pill, would cause unimaginable
damage to everything we understand about human
moral character.‖
— Michael Sandel

36. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Moral Enhancement and
Freedom: Harris
• Freedom to do wrong is part of personal autonomy
– Milton: ―Sufficient to have stood, though free to fall‖
• Should maintain our freedom to act immorally
– Moral enhancement will reduce this freedom
– The loss of freedom outweighs gains of enhancement

37. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Does Moral Enhancement
Restrict Freedom?
• Women are more empathetic which leads
to greater self-sacrifice
– Nevertheless are able to act wrongly
• Men enhanced to have female levels of
empathy are equally free
• Being more virtuous is not being less free

38. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Beggar in the Street: John
• John walks past a beggar each day
• Usually he looks away
• AI suggests empathy enhancing strategy, eg pill
to increase empathy
• Sees beggar and reflects on suffering
• Provides meal
• Giving meal is free, though more virtuous
– Same effect as reading a novel or virtue training

39. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
James
• James is a judge in multi-ethnic area
• Had a racist upbringing and is aware of
remaining bias in moral and legal thinking
• Takes drug to reduce racial bias
• Increases freedom by removing prejudice

40. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Objection: Enhancements which
Restrict Options
• Chemical castration
• Would this reduce autonomy?

41. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Voluntary moral enhancement
(ME)
• Removal of options does not necessarily
undermine autonomy
– Can promote rather than restrict autonomy
– Ulysses style precommitment contract

42. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Involuntary Use of ME
• Eg castration, Ritalin
– If applied involuntarily, would compromise
freedom in one way
– But imprisonment also restricts freedom

43. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Restrict Freedom/Promote
Autonomy
• Many restrictions of freedom are
necessary to promote autonomy and its
development
– Education
– Training
– The reason is that autonomy is not mere
choice but evaluative choice about one‘s own
life

44. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Involuntary ME: Autonomy
Restricting
• In some cases, might restrain freedom and
autonomy (remove freedom to fall)
– Chemical castration
– But we restrain freedom of criminals when
they kill by incarceration.
– This restraint by removal of motivation is
preferable as the criminal suffers less and
others are not harmed.

45. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Involuntary ME: Autonomy and
Wellbeing Promoting
• Ritalin enhances impulse control
– Good for society
• Reduces impulsive violence
– Good for person
• Opens future options – autonomy promoting
• Promotes socioeconomic success

46. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
ME and Value of Freedom to
Fall
Freedom is only one value
– IF ME reduces serious crime:
• Benefits potential victims
• Benefits potential criminals (prevents later
imprisonment)
• Wellbeing and respect for basic rights
outweighs value of autonomy

47. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Minimal morality
• When the cost to X of doing A (or
refraining from B) is small, and the benefit
to Y is large, X should A (or refraining from
B)
– When the harm to Y is large and unjust, X can
be compelled to A (or refrain from B)
• Justification for compulsory use of Ritalin but not
hormonal castration?

48. Oxford Uehiro Centre for Practical Ethics
Julian Savulescu
Moral Bioenhancement and the Law
Conclusion
– Bioprediction and risk assessment should be
scientifically valid
• Can be used ethically
– Voluntary moral enhancement does not
undermine freedom and does not necessarily
involve coercion or exploitation
– Involuntary moral enhancement does
undermine freedom but may be justifiable
– Weigh values of personal autonomy, harm
and public interest