Tuesday, July 24, 2012

My Thoughts on GMOs

The Libertarian Party does not take an official position on Genetically Modified Organisms (GMOs), but perhaps it should.  There are movements afoot to regulate and control the use of GMOs through top-down regulation imposed by the violent power of the state.  Such an approach is not likely to end well.  There are other ways to address the risks and moral issues posed by GMOs, through a bottom-up approach founded in natural rights, voluntary cooperation, and the rule of law.  It is worth thinking about what a voluntarist approach to regulation of GMOs might look like, or what regulation, if any, is really necessary.

For the purposes of this article, a GMO is defined as an organism resulting from the artificial insertion of a genetic material into the organism's genome.  "Artificial" means using gene splicing or a similar technique to achieve a result that cannot be obtained through selective breeding.  For example, a mule obtained by mating a horse to a donkey is not a GMO, but a goat that has had a gene for producing spider silk inserted into her DNA using a laboratory technique is a GMO.

Although judicious uses of GMOs can produce amazing and desirable benefits, such uses may pose tangible risks of harm to persons, property, and the environment.  The creation of GMOs may also implicate moral questions for some people.  GMOs therefore pose both easy questions and hard questions for libertarians.  The easy questions concern assigning responsibility for harms caused by GMOs to the persons responsible for causing those harms, though civil liability.  The hard and perhaps irresolvable questions concern morality.

First, the easy questions, concerning regulation of GMOs in the marketplace.  GMOs may be divided into two streams of commerce: products made from GMOs, and the GMOs themselves.  Flour made from genetically modified wheat, spider silk from a genetically modified goat, or corn syrup from genetically modified corn are examples of products whose qualities may be affected by having been derived from a genetically modified source, but that do not pose any special risk to the environment such as genetic contamination of non-GMOs.  There should be little debate among libertarians that a free-market approach to GMO products is the best approach.  Simply put, individuals should be free to purchase or refuse to purchase GMO products as they deem best.  This means that sellers passing off GMO products as coming from non-GMO sources, or vice-versa, must be held liable for fraud.  Specific product labeling is not necessary, and should neither be required nor forbidden.  If a seller declines, for whatever reason, to disclose whether or not a product is from a GMO source, that should be permitted.  Individuals who want to avoid consuming any GMO products can do so by purchasing only from sellers who are willing to warranty that their products come from non-GMO sources.  The free market will  quickly drive out unsafe or unduly risky GMO products, while allowing for development of safe and effective GMO products for applications where non-GMO products are not available, more expensive, or of inferior quality.

Commerce in living GMOs is a more difficult area, that may be approached by dividing GMOs into classes based on level of risk to humans and the environment.  At the highest level of risk are living GMOs that pose a direct risk to human life or health, such as weaponized pathogens.  These organisms pose an uncontrollable risk of serious harm.  There is no conceivable justification for the creation of new deadly and uncontrollable organisms under libertarian principles.  Such activity creates unreasonable risks for others without any offsetting benefits, tantamount to an unprovoked act of aggression.  Therefore, the creation of such GMOs whether by government or private entities should generally be regarded as a crime.  It may be morally defensible to experiment with GMOs for the purpose of creating vaccines or antidotes to known biological weapons held by an enemy.  This justification  fails when the organism is entirely new and therefore not known to be possessed by an enemy, as in the case of a GMO.  A voluntarist society could enter into treaties with its neighbors banning any development or use of biological weapons, just as statist societies do.

At the lowest levels of risk are GMOs that are incapable of reproducing or exchanging any genetic material with non-GMOs.  Such organisms pose no discernible environmental risk, because in the event these GMOs escape into the environment, they will simply die out without causing any long-term effects.  Of course, an escaped GMO could cause harm just as an escaped non-GMO can, and owners of GMOs should be held responsible for any harm or damages caused by their escaped organisms just as owners of non-GMOs are.  These types of low-risk GMO's should not require any special consideration insofar as civil liability goes.  Their creation may implicate moral questions, which are touched on later. 

At intermediate levels of risks are GMOs that do not pose any severe risk to human life or health, but that are capable of reproducing or interbreeding with non-GMO organisms, and may have some harmful environmental effects.  The damages caused by such organisms, once escaped into the environment, may far exceed the ability of any entity to compensate for or repair.  On the other hand, actual damages caused by escapes into the environment may sometimes or even usually be quite manageable or immaterial.  The key point that should be recognized is that the possibility of indefinite and widespread replication of genetic material from GMOs calls for a different analysis than classical liberal views of environmental pollution as advanced by Rothbard, Coase, and others.  Self-replicating GMOs represent a Pandora's box of unknown risks that may spread far beyond an area of initial introduction.

This aspect of GMO's does not mean that the state should control introduction of GMOs, picking winners and losers to achieve its political ends.  It just means recognizing that potential harm caused by introduction of a GMO may extend indefinitely far beyond the adjacent property owners, in both space and time.  Therefore, a bottom-up regulatory scheme may operate by recognizing a right of non-adjacent stake holders to know about and oppose the introduction of a particular GMO prior to its introduction into the environment.  For example, it may be made a crime to introduce a GMO into the environment without prior public notice and opportunity to oppose.  If opposition is filed, the GMO-introducing party may be assigned the burden of proof (after a burden of production is satisfied by an opposing party) to show one of the following circumstances applies: (a) the GMO cannot reproduce or exchange genetic material with non-GMOs; (b) the introducing party is capable of and will prevent release of the GMO into the environment through some reliable technological means; or (c) release of the GMO into the environment will not cause any harm that cannot be repaired or compensated for by the introducer.  Unless the introducer could prove that one of the foregoing circumstances applies in a particular case, any introduction of the GMO at issue would remain subject to criminal as well as civil liability.

A body of law and civil procedure would have to be developed to address these highly fact-based questions, the details of which would exceed the scope of this article.  Such an adversarial private law approach to sifting the risks and benefits of GMOs would prove far superior to essentially arbitrary regulation by the state.  A private negotiating process under the rule of law would drive out projects wherein the risks of a particular GMO cannot be shown to be manageable.  Meanwhile, the most economically worthy projects, wherein the GMO is of sufficient value to justify the costs of the adversarial approval process plus subsequent risk mitigation and insurance costs in addition to development costs, would enjoy a much higher probability of passing the opposition process.  Introducers of GMOs would remain liable for any actual damages caused by introduction of GMOs into the environment, regardless of whether or not criminal liability also applies.

There are some worthy counterarguments to use of a proactive private opposition procedure to regulate the introduction of GMOs.  For one, a too stringent opposition procedure would merely shift research and use of GMOs to jurisdictions with laxer regulations.  Thus the opening of the GMO Pandora's box cannot be prevented; and if it cannot be prevented anyway, why bother with proactive regulation at all?  A further objection is that a proactive opposition procedure unfairly singles out one type of activity; after all, any activity may cause damages beyond the ability of the economic actor to repay or repair.  These arguments may appeal to the purist advocate of the free market, but will do nothing to allay the concerns of  many who fear untrammeled use of GMO technology.  A private opposition procedure is admittedly a compromise position roughly midway between total state control of GMO activity and no prior restraints at all.  For a potential Pandora's box type of technology, some mechanism for prior restraint may be politically unavoidable and prudent for practical reasons, unless and until the technology is shown not to pose a risk of irreparable environmental harm.  Until then, mitigation of  such Pandora's risks should as much as possible be privately negotiated directly between stakeholders each acting in their own respective economic self-interest.

Statists will meanwhile argue that nothing short of total state control of GMO activity will do.  The FDA stands as Exhibit A for why this will not work.  Leaving aside the strongly held beliefs of libertarians that government control of the pharmaceutical markets violates natural rights to life, liberty and the pursuit of happiness, and is economically unnecessary besides, the FDA has not proven effective as a regulator of medicines.  It is too beholden to the large pharmaceutical interests and too eager to stamp out cost-effective alternatives such as nutritional therapies. Lacking any competition in the United States, it imposes overly burdensome requirements on new remedies and stifles innovation in health care.  Instead of acting in the public interest, it acts in its own self-interest by seeking to expand its own importance and budget, rewarding political cronies and punishing political enemies along the way.  Government control of GMOs would have a similar deleterious and distorting effect, and interfere with the economic process of encouraging development of the most valuable applications for GMOs while preventing the riskiest. 

Regarding moral questions, some may believe that the creation of GMOs is an offense to God or Nature, a violation of the rights of animals, or a violation of human rights, and should be banned entirely or subject to tight control by the state as an enforcer of morals.  Others believe that all forms of genetic manipulation should be permissible and are even inevitable, perhaps excepting the development of biological weapons.  Naturally, a libertarian political philosophy should not advocate for the state as the decider or enforcer of such moral questions, to the extent no forcible harm or fraud is involved.  Some may also believe that any use of GMOs is inherently too risky to be permissible under any circumstances, but such abject fear is logically unsound.  All economic activity or inactivity entails risks and consequences, which can be better understood by unbiased and reasoned examination.

Perhaps the most difficult moral issues involve modification of the human genome.  Because the individual whose genome is modified cannot know about or give consent to the modification (assuming that the modification is performed on a zygote before the individual is formed), some may view this as an impermissible use of force against the individual.  Others may believe it permissible so long as the decision is made by the parent (or parents) or legal guardian, perhaps in limited circumstances such as to eliminate known genetic defects.  The ethics of human genetic manipulation are certainly worthy of thoughtful consideration.  At the margins, the ethical issues may become extremely provocative.  For example, is a creation of a clearly non-human chimera (human-animal genetic combination) a criminal act?  What about modifying the genome of a zygote to make a person with fins and gills? However, unless and until radical modifications of the human genome prove possible, such questions, being merely hypothetical, are unlikely to be a great source of controversy among libertarians.