The Paralympics, the Olympics, and Human Enhancement Technology:

The situation after the Pistorius ruling of the Court of Arbitration for Sports

The Choice is Yours biweekly column by Gregor Wolbring

May 30^th 2008

http://politicsofhealth.org/wol/2008-5-30.htm

I covered the Pistorius story for the first time in June 2007 in one of my columns in which I pointed out how human enhancement technologies impact increasingly the Paralympics and Olympics. After that I wrote a piece for SCRIPT-ed – A Journal of Law, Technology & Society - online open access here - that was published April 15, 2008, where I expanded on the topic. The abstract on the webpage of the journal reads

“Oscar Pistorius is a Paralympic bionic leg runner and record holder in the 100, 200, and 400 meters who wants to compete in the Olympics. This paper provides an analysis of a) his case; b) the impact of his case on the Olympics, the Paralympics and other –lympics and the relationships between the –lympics; c) the impact on other international and national sports; d) the applicability of the UN Convention on the rights of persons with disabilities. It situates the evaluation of the Pistorius case within the broader doping discourse and the reality that new and emerging science and technology products increasingly generate internal and external human bodily enhancements that go beyond the species-typical, enabling more and more a culture of increasing demand for, and acceptance of modifications of the human body (structure, function, abilities) beyond its species-typical boundaries and the emergence of new social concepts such as transhumanism and the transhumanisation of ableism”.

This column is a further reflection after the Court of Arbitration for Sports ruled in the Pistorius case.

The SCRIPT-ed paper examined the impact of the United Nation Convention on the Rights of Persons with Disabilities on the Pistorius case, and the impact of human enhancement technologies on the different –lympics. It reached the following conclusions:

1. 3.2.1. Does a claim exist to ask for equal support for athletes whether they are Paralympic, Deaflympic, Special Olympic, to come other-lympic or Olympic athletes? This question could be answered with a ‘Yes’ keeping in mind the limitations and open questions listed in 3.4.

2. 3.2.2. Does a claim exist to demand the move of Paralympics, Deaflympics, Special Olympics and other –lympic events of the future into the Olympics in general; The answer is probably yes keeping in mind the limitations and open questions listed in 3.4.

3. 3.2.3. Does a claim exist that Oscar Pistorius has the right to compete directly against so called non-disabled athlete in Olympic events? The answer is probably yes keeping in mind the limitations and open questions listed in 3.4.

4. 3.2.4. Does Oscar Pistorius have a claim for a separate bionic track event as part of the Olympics? The answer is probably ‘No’ keeping in mind the limitations and open questions listed in 3.4.

For people who have not read my paper, the last point needs some explanation.

The key phrase is ‘equal basis with others’ in Article 30.5 of the convention. Rules govern which sports becomes part of the Olympics and the other –lympics. Depending on which rules would be used to deny access for a bionic track and field event in the Olympics it might or might not violate the Convention.

One could compare the add-on’s (bionics) and tools (wheelchairs) of so called Para athletes with the pole used in the pole vault, or with external tools used in other sports to move beyond species typical functioning. As in the case with pole vaulting and high jumping, it is not uncommon that the use of a performance enhancing device has led to the emergence of separate events in the Olympics. In a similar manner, it is logical to have bionic, wheelchair and biological running in the Olympics. When Paralympic athletes are able to outperform the ‘normal’ athletes, the Paralympic athletes are able to make an argument that their tools should be treated like a pole or other external tools used by the ‘normal’ athletes. In that sense ‘equal basis with others’ in Article 30.5 of the convention would apply.

However there still have to be standards. The –lympics have rules as to when they accept a sport as mature (for the lack of another word at the moment). If there had been only one person with a pole, that person would not have received access to the Olympics. If it were introduced today the pole would be classified as a technical aid leading to an unfair advantage over the high jumper. It would fall under the technical aid rule 144.2 of the world governing body for track and field (IAAF). The pole vault is a part of the O-lympics because everyone accepts it that a person with a pole should not be compared to a high jumper, because enough people pole vault (pole vaulting actually has a long history), and because there is a way to standardize the pole.

As soon as many Paralympic people outperform the ‘normal’ athletes, and the add-ons can clearly be seen as giving an advantage (a conclusion rejected in the case of Pistorius), one can foresee that ‘bionic’ events could be separate events at the O-lympics. In the case of the wheelchair racing events, the wheelchair racing athletes can already make a case using ‘equal basis with others’ in Article 30.5 that they should be part of the O-lympics. The wheelchair can be simply seen in the same category as other external tools used by athletes in the O-lympics like the pole in pole vaulting.

In my first column where I covered the impact of Human Enhancement Technology on the Paralympics and the Olympics, and on the case of Pistorius, I asked the question: What justifies the separation of the Olympics from the Paralympics -- the level of performance or the body structure of the athletes? I answered my question as follows “The second reason does not quite fit with the ideals of the Olympics -- which leaves the argument based on the performance of the athlete.” The Pistorius decision of the Court of Arbitration for Sports (press release here) seems to fit with how I answered the question.

1) The ruling was against the scientific data claiming that the cheetah legs of Pistorius lead to an unfair advantage. The ruling leaves the door open that one could exclude a runner with prosthetics from competing in a ‘natural leg’ running event if it can be proven that the ‘artificial’ legs lead to an unfair advantage. This makes sense. So far the process of investigating these new ‘artificial’ legs is not developed enough to provide a gold standard, so it is open for interpretation. If tests are developed that objectively demonstrate that the prosthesis provides an unfair advantage one can see that that runner would not be allowed to run against the ‘biological leg’ runners.

2) However the ruling seems to give the answer to the question I asked in my column. Are the Olympics about athletes who have a body adhering to the norm of the homo sapient species? In other words is the Olympics about athletes with a ‘normal biological body’? The ruling cements the view that the Olympics are not about biological bodies per se. So one can compete in the Olympics independently of whether certain biological parts are replaced by artificial parts. If the replacement does not lead to a competitive advantage athletes with artificial body parts can compete against athletes where the body part in question is biological.

On the other hand, in cases where the replacement does leads to a competitive advantage, the ruling opens the door for treating the artificial body parts like a pole used in pole vaulting. In this case there would need to be separate events within the Olympics .

Pistorius decision of the Court of Arbitration for Sports and the UN Convention on the Rights of Persons with Disabilities

“76. Furthermore, the Convention would not be engaged in the circumstances of this appeal. By way of example, Article 30.5 provides that Contracting State shall encourage and promote the participation of persons with disabilities in mainstream sporting activities at all levels with a view to enabling them to participate on an equal basis to sporting activities.

77. In other words, disability laws only require that an athlete such as Mr Pistorius be permitted to compete on the same footing as others. This is precisely the issue to be decided by this Panel: that is, whether or not Mr Pistorius is competing on an equal basis with other athletes not using Cheetah Flex-Foot prostheses. As counsel for the IAAF rightly mentioned, if this Panel finds that Mr Pistorius' Cheetah Flex-Foot prostheses provide no advantage to Mr Pistorius, he will be able to compete on an equal basis with other athletes. If the Panel concludes that Mr Pistorius does gain an advantage, the Convention would not assist his case.”

As useful as the ruling is for Pistorius the ruling also raises some questions regarding the convention. Points 73-75 state

“73. Disputes arising under the IAAF Rules shall be resolved in accordance with the provisions of the Rules. The Parties agree that the law applicable to substantive issues is the law of Monaco, as the law governing the IAAF Constitution pursuant to its Article 16.

74. The Convention on the Rights of Persons with Disabilities and its Optional Protocol (the "Convention") was adopted on 13 December 2006 at the UN Headquarters in New York, and was opened for signature on 30 March 2007. It came into force according to its terms (Art.45), thirty days after the twentieth ratification was deposited, on 3 May 2008.

75. Signing a Convention may create an obligation, in the period between signing and ratification, to refrain from acts that would defeat the object and purpose of the treaty. Ratification is an action taken by States that signal an intention to undertake legal rights and obligations contained in the Convention or the Optional Protocol. None of these actions have been taken by the Principality of Monaco, and the UN Convention has not been enacted in its Law.”

The line of reasoning in these passages would seem to be that no international body that is governed under the law of Monaco has to follow the Convention until Monaco has signed the convention. The wording suggests that in a case in front of the Court of Arbitration for Sports, against an organization that is based in a country that has not signed the convention, no person or organization would be able to base their arguments on the principles established by the Convention. This would apply whether the organization was a nation or international one. Such a case, if it were based solely on the Convention, would be dismissed on a legal technicality. The Court of Arbitration for Sports would judge that the principles of the Convention are applicable only for organizations (national or international) that are based in a country that has signed the convention.

If this is the correct reading of points 73 through75 the ruling might have dire consequences for the utility of the Convention in sports as long as many international sports organizations have their seat in countries that have not signed the convention. I would find it unfortunate if international organizations would not follow UN Conventions only because their legal seat is in Monaco or any other country that has not signed and ratified the convention.

However, in the end its not the law that will decide the face of sports, but the people --the spectators -- you -- who will decide how the -lympics of the future will look. If people are interested only in performance we very likely will see the O-lympic athletes to be nearly exclusively athletes with external or internal modifications. We are at a crossroads. If maximum performance is the exclusive interest of the spectators, we will have a two tiered system as we do today -- only the enhanced will compete in the O-lympics and the non enhanced will be in the Para-lympics. I would say this scenario goes as much against the Olympic spirit as I think today’s segregation does.

The Paralympic athletes should have the option of competing in the Olympics. If some choose to stay separate, fine, but the choice should be there’s. The spectators have a choice. They can decide give a central place to the value ‘that one tries ones best’. When this value is affirmed, sports are no longer about absolute performance but about trying ones best within ones parameters. This approach would lead to the creation of many different subclasses of events. Indeed, this is already the case with the Para-lympics, as the variation in body shape is much greater. If trying ones best within ones parameters were the guiding value, we would celebrate everyone. Everyone would be able to compete within what would then truly be the Olympics -- under the same roof and in the same program. This is the real spirit of the Olympics and of Sports.

I do not think that mixing within an event (like running) is always necessary. What is necessary is the celebration of the people who are performing in every event and not judging one event as inferior because the numbers might be ‘better’. We do not diminish the high jumpers because the pole vaulting people jump higher. We should not diminish the achievement of a high jumper because a bionic leg jumper might jump higher. But we also should not diminish the achievement of a one legged high jumper if his or her jump is not as high as the two legged high jumper.

If spectators in the end decide to opt for absolute performance I do think the Olympic spirit is dead. By such a choice they would be setting themselves up for a world of infinite out-able-ing each others in a non winning rat race. In such a world one is exposed to an unrelenting judgment of ones abilities. With the enhancement products on the horizon I think the world has to re-evaluate how they judge each others. Sports and the Olympics give an opportunity to celebrate trying ones best within ones framework. I believe this is the only tenable way.

The Choice is Yours

Please contact the author for any information desired at gwolbrin@ucalgary.ca
© Gregor Wolbring, All Rights Reserved, 2008. Please contact the author for permission to reprint. More columns can be found at innovationwatch.

Gregor Wolbring is a biochemist, bioethicist, disability/vari-ability/ability studies scholar, and health policy and science and technology governance researcher at the University of Calgary. He is a member of the Center for Nanotechnology and Society at Arizona State University; Part Time Professor at Faculty of Law, University of Ottawa, Canada; Member CAC/ISO - Canadian Advisory Committees for the International Organization for Standardization section TC229 Nanotechnologies; Member of the editorial team for the Nanotechnology for Development portal of the Development Gateway Foundation; Chair of the Bioethics Taskforce of Disabled People's International; and former Member of the Executive of the Canadian Commission for UNESCO (2003-2007 maximum terms served). He publishes the Bioethics, Culture and Disability website and authors a blog on NBICS and its social implications.