I think, to come back to your question, I think there is a new ball game going on. Almost everybody speaks to me now. There was a time they didn't.

Senator MONDALE. Senator Dominick?

Senator DOMINICK. I have no questions.

Senator MONDALE. Thank you, Dr. Beecher, for a most helpful contribution.

Our final witness this morning is Prof. Abram Chayes, of the Harvard Law School.

He is currently cochairman of the Commission on Law, Biology, and Ethics established by the Salk Institute's Council on Biology and Human Affairs.

STATEMENT OF PROF. ABRAM CHAYES, HARVARD LAW SCHOOL, CAMBRIDGE, MASS.

Mr. CHAYES. Good morning, Senator Mondale and Senator Dominick. Senator MONDALE. We are pleased to have you with us this morning. Mr. CHAYES. Let me apologize for not having a duplicated prepared statement. I wasn't able to get it done in time to get it typed and mimeographed, but I have a statement here.

My name is Abram Chayes. I am a professor at the Harvard Law School, and I appear today to testify in support of Senate Joint Resolution 75. I want to thank the committee for this opportunity.

First, let me explain my interest and concern with this subject matter. I am cochairman of the Commission on Law, Biology, and Ethics established by the Council on Biology and Human Affairs of the Salk Institute.

Snator MONDALE. When was that established?

Mr. CHAYES. Well, the council has been in existence for 3 or 4 years and the commission has been in existence for a couple of years.

We aren't included on Dr. Duval's list, but we are a group that has been at work in this area, and at least from my point of view, we don't appear to be in any danger from the commission to be established under this resolution.

My cochairman is Prof. Joseph Goldstein of the Yale Law School. I should say that I don't speak on behalf of the commission. I speak personally, except to say that we would welcome any opportunity to cooperate with a body set up under this resolution, and we see important areas for cooperative work between us and such a Commission.

The Salk Institute, as you know, is one of the great biological research centers in this country. It was established with proceeds, or some of the proceeds, from the immunization for infantile paralysis discovered by Dr. Jonas Salk, after whom the institute is named.

From the beginning, Dr. Salk was determined that the institute, in addition to being a superb center for hard scientific work, should not neglect the broader concern with political and social implications of this research.

This determination led a few years ago to the creation by the institute of a semiautonomous Council on Biology and Human Affairs. The council is under the chairmanship of Dr. Victor Brunowski, philosopher and historian of science.

Its members include a number of distinguished biologists, but there are also scientists from other fields, representatives of the social sciences, and humanistic disciplines, as well as men of affairs.

The staff director is Mr. Harry Boardman, formerly director of the Council on Foreign Relations.

The Council on Biology and Human Affairs operates by establishing commissions to work in particular subject areas. The Commission on Law, Biology and Ethics is one of these. We have worked for about 2 years now in a field that I confess is more baffling and difficult and, at the same time, is as portentous as any that I have dealt with.

We have concentrated our efforts primarily in the area of genetic development, prenatal diagnosis, genetic therapy, and so-called genetic engineering.

We have had the assistance of a number of distinguished biologists and some younger people who work in the field. We are now turning to the fields of chemical and electrical methods for control and modification of human behavior.

I must report to you that we have made very little concrete progress, apart from a certain amount of self-education about the developments in the field. Part of this is due to limitations of time, staff and resources, and one of the main reasons why I support this resolution is my sense of the need for a body with the time, staff, and resources and the concentration of energy and effort sustained over make an impact on the problems in this area.

long time to

There have been a lot of conferences, as Dr. Beecher has said, and a lot of meetings and a certain number of articles, but I am of the opinion that unless one can get sustained work over a considerable period with a critical mass of people, we are not going to make much progress. We are not going to get very much further than what Dr. Beecher described.

For, as I have said, these are extraordinarily complex and difficult problems even to define, let alone solve. How are we to characterize the novelty and complexity of problems that emerge in this area? We hear a lot of awesome pronouncements about man being able now to meddle with the very stuff of life itself. And there is something to this, but we must be more careful in trying to say just what it is.

After all, man has always intervened to change his own environ. ment, increasingly so in the last few hundred years. One generation has always dictated to some extent the terms on which succeeding generations have had to live.

Nor have these interventions been confined to the external environment. Man has sought to improve his own nature and nurture by whatever means that lay at hand.

What is different in our present state is the power of recent biological discoveries in terms of the scale of interventions they make possible and the time frames in which these may occur. A sense of the order of magnitude can be gained if we say that biology is now crossing a threshold or maybe it has crossed it already, comparable to that on which atomic physics stood a generation or so ago.

An understanding of very fundamental relationships is opening up, and there is the added significance that these are the phenomena of life itself.

Like all such new technologies, as we are beginning to learn, the availability of new biomedical technology creates enormous tensions and problems for policy. They hold out great opportunities for improvement of life for all man, but at the same time, because of the scale and time frame of intervention to which I have already referred, the natural processes of self-correction and reversal of errors and false starts may be prohibited or wholly unavailable.

I want to point out three stages or levels at which public policy problems arise, each raising very fundamental value issues and value conflicts.

The first is at the level of research, and we have been talking about that quite a bit this morning. What kinds of research should go forward? This kind of question used to be answered by reference to the right of the investigator, to pursue truth wherever it led him. Even if we were prepared to continue to rely wholeheartedly on that principle, it does not solve our policy problem any longer. Research today is and will increasingly be publicly funded. There is no escaping the basically political questions of how much public money shall be devoted to these ends, who shall allocate it among competing projects, by what criteria and under what safeguards, both for the interests of the public and the freedom of the scientist.

The second level of importance is at the stage of treatment for disease. Once discoveries are made, there is overwhelming pressure to make them available for the relief of human suffering, although Senator Dominick suggested that it might not be as overwhelming as I state here.

Uncertainties and objections may be swept aside in a wholly understandable rush for this goal. On the other hand, as may be the case with certain new kinds of drugs, gains and benefits may be indefinitely delayed in a wholly unrealistic search for absolute safeguards.

Now methods of treatment for human disease need some testing on human beings before they can be approved for general use.

How are we to balance the burdens, risks, and benefits of such a process?

Again, our usual recourse is somewhat suspect. In the past, we have referred questions of this kind to the free consent of the individual involved. "Free consent" and I put that in quotation marks, is supposed to be based on full disclosure of the risks, and in many cases, neither the kind nor the dimensions of the risks are known even to the doctor.

Moreover, we must be concerned whether consent is truly free. Submission to treatment may be consensual in form, but in fact dictated by the doctor, or the patient's illness may deprive him of a really free choice, or the patient may be incompetent, or a child, or unborn.

I do not know how questions of this kind should be resolved, but they seem to me very, very difficult, and you will have noted that they touch on such things as the doctor-patient relationship, which I need not remind you is extraordinarily sensitive.

The third stage of potential policy problems may be called the problem of regulating genetic and other forms of intervention based on new biomedical technology.

Here, the object of the technology is not so much to cure disease as to improve the race. We cannot brush this goal aside. It has always

been a prime goal of human action, and in a sense, of course, it is the product of natural selection and evolution.

In this same sense, one way to describe the biological discoveries just over the horizon is that they will give us power to intervene in this evolutionary processes in a massive and much more controlled way than ever before.

But here arise some of the most fundamental ethical and moral questions of all. Suppose we gain the power to decide in a much more literal sense than ever before who shall be born, what kind of people, with what physical or mental characteristics, or who shall die, that is, who shall be permitted to die and who shall be perserved.

Conceptions of life and its values that underlie all moral and ethical precepts may have to be reexamined.

That is why I strongly support the Commission proposed in the resolution before you today. The more sustained, sober, and serious thought that we can bring to bear on these issues, the better.

I am glad to see that the resolution brings in many disciplines. and I hope it includes the general public as well. This is not a field in which scientists have many answers. They have a lot of information about what is going on, but the information raises questions on which the scientist qua scientist is not particularly better qualified than others to say how those questions ought to be answered.

Nor in the end is this an area where the problems are likely to yield to the ministrations of experts at all. This leads me to the one reservation I have with the resolution, and it is really not a reservation so much as a matter of emphasis.

I would not stress too heavily the objective of concrete recommendations for action at the end of the Commission's 2-year life. Obviously, to the extent that such immediate proposals for policy action can be put forward with confidence, the Commission should do so.

But I believe the biggest contribution of this Commission will be in thought and reflection and in stimulating a far-reaching and informed dialog on these matters.

In this dialog, there will be need for all the specialized knowledge that the experts can find. What is at stake is indeed a reexamination of very basic human values, and that is a process that cannot be hurried, and is one in which all parts of our society must be engaged. Thank you.

Senator MONDALE. Thank you very much, Professor Chayes, for a very useful statement, including your final recommendation.

Senator DOMINICK. Mr. Chairman, I hate to say this, but I have to go out to your fair State in about half an hour.

Senator MONDALE. You can ask questions for about 2 hours. Senator DOMINICK. I was very interested in your statement, which I thought was excellent. It brings out a lot of points.

One of the things that particularly struck me is that you said from your own experience that the very questions are hard to define. It is going to receive a sustained program with staff and resources to go into this in considered depth.

So you really believe the Commission can define the questions and come up with the answers in 2 years?

Mr. CHAYES. Senator, I am a little doubtful about the answers, as I said at the end. I think this is a central kind of question that our

society is going to have to be grappling with over a long period of time. I do think that this Commission, this kind of Commission, can make a very important contribution to that effort, to define the issues with some kinds of solutions.

come up

Again, it is not really the kind of thing that you can push a button and say it is solved and put away. A million dollars which in terms of our health budget is really almost trivial (I hate to say that as a law school professor, but it really doesn't look like anything in terms of the budget of HEW)-is an enormous amount in this field. Our Commission operates on a budget of a few thousand dollars a year. It is just barely enough to get us into two or three meetings a year. The ability to get full-time people involved: there are numbers of people both in the scientific disciplines and in the related social and humanistic disciplines who are terribly interested in this, but there aren't many places that they can go to get a place to work on it.

So, I do think this can make an important impact, and the only reservation, as I say, and it is really just a change in emphasis, is that I hope we won't be too concerned about coming up with a new big program or a big new code of ethics or try to rewrite the 10 Commandments in 2 years.

Senator DOMINICK. You wouldn't object, however, if we extended the life of the Commission further after the 2-year period?

Mr. CHAYES. Well, that depends a little bit on what happens in the first 2 years. We may find that this whole problem of assessment, of not only biomedical technology, but others, takes a much more central part in our public policy process over the coming years, and we may find different ways of institutionalizing that kind of process.

But I do think we need some form of institutionalization at the present time. How far into the future that should extend will really depend on what results it gets.

Senator DOMINICK. Now, the $64 question, as far as I am concerned

is this:

The history of national commissions, whether in dealing with crime, or military preparedness, or whatever, the net result is that when the report comes out, the American people as a whole, and most Members of Congress feel that this is an authoritative report with a final

answer.

Now, what do you do about that? Because obviously it is not going to be, and equally obviously, the public as a whole will consider that this is the answer.

Mr. CHAYES. In the first place, I think in some senses they think it is the final answer, but in some senses, when a commission report comes out, the other objection is raised that the only thing that happens is that it goes on the shelf and gathers dust, that nothing happens.

If you look at the whole set of commissions that you just referred to, the legislative product, if you will, from some of those has been rather less than might have been hoping.

But I think I don't want to discount the dangers that you suggest, that this has a kind of authoritative force. It comes down with the force of the Government behind it, so to say.

I would hope the Commission would be made up of men and women who would have this kind of problem and danger in mind. Moreover, I think even as to those other commissions you talk about, although

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