46 Pages Posted: 9 Jul 2009 Last revised: 9 Feb 2014
Date Written: July 8, 2009
Autonomy is commonly seen as a fundamental value that should guide the federal regulation of human subjects research. In this article, we argue that autonomy is compromised, and should be compromised, for the sake of the welfare of research subjects and the welfare of people who stand to benefit from medical research. Such a compromise of autonomy is evident in exceptions to the requirement of informed consent, including the exceptions for emergency research and minimal-risk research. Less obviously, the blind clinical trial inherently represents a compromise of autonomy, as subjects are offered medical treatment on the condition that they give up (1) the right to know what treatment they are receiving, and (2) the right to participate in decision-making about their treatment. While such an offer of treatment conditioned on a waiver of informed-consent rights does not contravene the libertarian conception of autonomy, it does contravene the liberal conception of autonomy that is now dominant in bioethics. Autonomy is also compromised, on both the liberal and libertarian accounts, when access to experimental drugs is limited in order to channel people who are seeking those drugs into clinical trials.
We endorse most of the ways in which the regulation of human subjects research compromises autonomy for the sake of welfare. We also suggest some ways in which autonomy should be further subordinated to welfare, especially in the selection of research subjects. Researchers should select subjects who present a more favorable risk/benefit ratio, even if those subjects are less able to give autonomous consent. The necessity for this rule is illustrated by the Gelsinger case. In that case, researchers initially sought to test a gene-therapy treatment on terminal infants. They were persuaded instead to test the treatment on adults with a mild form of the disease, since those adults could give fully autonomous consent. One young adult subject died as a result; he would not have died if autonomy had been properly subordinated to welfare.
Keywords: human subjects research, welfare, autonomy, informed consent, bioethics
Suggested Citation: Suggested Citation
Stein, Mark S. and Savulescu, Julian, Welfare Versus Autonomy in Human Subjects Research (July 8, 2009). Florida State University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1431482