Regulating Identity: Medical Regulation as Social Control

INTRODUCTIONNew biomedical technologies offer growing opportunities not only to prevent and treat illnesses, but also to modify identities. Cosmetic procedures can change one's physical appearance, including altering one's sex and perceptions of one's race or age. Healthy students and professionals seek to enhance their intelligence using drugs designed to treat attention deficit disorders, while others use antidepressants not to treat depression, but to alter their personalities-to become more confident and outgoing, less anxious and brooding.Some observers believe these identity-modifying practices threaten important values. Disparities in access to drugs that improve cognition could exacerbate economic inequalities. Using cosmetic procedures to lighten one's skin or to produce more "Western-looking" eyes can reinforce beauty standards that are infused with bigotry. Responding to feelings of sadness or anger by taking antidepressants may reduce individuals' motivation to address the life challenges and social injustices that sometimes underlie these emotions.These concerns are qualitatively different from the key aim that ostensibly animates the United States' existing systems of medical regulation: protecting human health. The Federal Food, Drug, and Cosmetic Act seeks to protect health by ensuring that the therapeutic benefits of drugs and medical devices outweigh these products' risks. The Controlled Substances Act likewise purports to restrict access to drugs based on assessments of their health risks and therapeutic benefits. State-level regulation of medical practice, including physician licensing and malpractice statutes, aims to deter doctors from acting in ways that threaten patient health.Because these existing regulatory systems are not designed to respond to the moral concerns raised by identity-modifying interventions-often referred to as "enhancements"1-some observers have called for expanding the scope of medical regulation to address such concerns. While these proposals vary in their particulars, they share a common core: empowering regulators not merely to protect health, but to "adjudicate among competing ethical claims"2 and restrict access to biomedical interventions based on "judgments about the technology's social and ethical implications."3 As Francis Fukuyama has argued: "What should we do in response to biotechnology that in the future will mix great potential benefits with threats that are either physical and overt or spiritual and subtle? The answer is obvious: We should use the power of the state to regulate it."4This article argues it is far from obvious that we should use state power to address the "spiritual and subtle" threats posed by biotechnology. Indeed, the United States' considerable experience in restricting biomedical interventions on moral grounds provides ample reason to be skeptical of such proposals. From alcohol and drug prohibition to laws restricting contraceptives and abortion procedures, when regulation has strayed from protecting health to enforcing morals these efforts have been costly, ineffective, and intrusive. The United States would be better served by reducing, rather than expanding, its reliance on contested moral considerations in limiting access to biomedical interventions.Part I describes how aspects of human identities are increasingly susceptible to modification by biomedical interventions, and outlines the concerns these practices raise among bioethicists and other observers. Part II describes how the United States' existing systems of medical regulation, which ostensibly focus on protecting human health, are generally blind to the broader moral concerns expressed by critics of enhancements. This part also describes several proposals to empower regulators to restrict identity-modifying practices on the basis of concerns other than protecting individuals from physical harm.Part III offers three arguments against regulating medical interventions to enforce contested moral views. …