Bioethics - truth of law or law of truth?

Author:Nasty Vladoiu
Position:PhD Associate Professor
Pages:1-12
SUMMARY

The right to life implies the prohibition of any methods, techniques, means which can impair the physical or mental integrity. The right to life has other dimensions as well, as a result of science achievements of and biotechnology development; legal regulations must keep up with these dimensions. The future will be the one that will show us whether bioethics is the truth of law in this matter or law of truth will reveal the conscious and carefully supervised possibility of biomedicine to improve the human condition without competing with the Creator. Anyway, until then, the practical solution offered by the legislator entailing legally binding bioethical norms can be regarded as sufficient, because the biomedicine and biotechnologies are accompanied by bioethics. This would not be a valid option and the author considers that it would be impossible to ask scientists and researchers to stop work, but he strongly believes that the international legislator must carefully and thoroughly watch that every discovery in this realm of such complexity, namely Life Sciences, which would entail new rules of bioethics.

 
CONTENT
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BIOETHICS - TRUTH OF LAW OR LAW OF TRUTH?
Nasty VLADOIU,
PhD Associate Professor*
ABSTRACT
The right to life implies the prohibition of any methods, techniques, means which can
impair the physical or mental integrity. The right to life has other dimensions as well, as
a result of science achievements of and biotechnology development; legal regulations
must keep up with these dimensions. The future will be the one that will show us whether
bioethics is the truth of law in this matter or law of truth will reveal the conscious and
carefully supervised possibility of biomedicine to improve the human condition without
competing with the Creator.
Anyway, until then, the practical solution offered by the legislator entailing legally
binding bioethical norms can be regarded as sufficient, because the biomedicine and
biotechnologies are accompanied by bioethics. This would not be a valid option and the
author considers that it would be impossible to ask scientists and researchers to stop
work, but he strongly believes that the international legislator must carefully and
thoroughly watch that every discovery in this realm of such complexity, namely Life
Sciences, which would entail new rules of bioethics.
Keywords: bioethics, biotechnology, biomedicine, fundamental rights, inherent
human rights; genome, the right to life, physical and mental integrity.
I. Introduction
The right to life is a fundamental right paving the way for the human rights
inventory, being the avant-garde right of the remaining rights in most documents adopted
internationally in the field, and also in national constitutions.
Particular attention should be paid to fundamental rights, because this concept is the
result of the very important connection between the evolution of human and civil rights
and constitutional law.
The fundamental rights concept, also called civil liberties or public freedoms has
evolved within the constitutional regulations (it first appeared in the German Basic Law
of 11 august 1919) and later was taken over by the “Protection of human rights” subject,
gaining universal size.
* Faculty of Law, Transylvania University, Brasov; Arbitrator/Judge with the Court of International
Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania; President of the
Union of the Bilateral Chambers of Commerce and Industry in Romania Attorney-at-Law, Bucharest Bar. E-
mail: vladoiu.nasty@gmail.com
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Mission to define the notion of the fundamental rights of the citizen, apart from the
notion of human rights, is not an easy one given the pronounced interfingering of the
meanings thereof, but essentially, the difference must be rooted in domestic or
international legal order enshrining thereof, thus shaping their spatial and personal scope
of application.
Protection of fundamental rights is guaranteed by the State, as it is the only one able
to guarantee thereof whilst consecrating them at the constitutional level, thus achieving
the sole guarantee of their observance. Nowadays, a text intending to be classified as
Constitution without containing a list of fundamental rights as prerequisite i s almost
inconceivable.
Fundamental rights are rights belonging to the individual, as they are subjective
rights, and the individual is the only one to whom citizenship may be acknowledged. The
Romanian Constitutional Court, through the rule no. 74/19941 stated that the said rights
“shall apply to citizens and for legal persons only to the extent that the fundamental rights
of citizens are indirectly affected through a specific regulation”.
To qualify a right as fundamental, one should emphasize its essential character for
the entire society, starting with the essential character for each individual.
Within the international doctrine, these rights appear as “essential rights” or
“important freedoms”, or “necessary freedoms”, reaching to some point in history when
the term emerged as a right inherently human.
Therefore, the discovery of new values essential for the physical component as well
as for the spiritual one of the human being life will result in failure to draw out a list of
these values. Since we are not dealing with a constant use of the term, we face difficulties
of interpretation in respect to the instruments in the field; however, within the tide of
concepts borrowed by the domestic legal order from the international one and vice versa,
we can withhold Professor Ioan Muraru’s expression as a very important thing: “to
summarize, we can remember that human rights in terms of universal realities become
citizens' rights in terms of domestic realities of each country”.
The prerequisite for the most effective protection of all human beings’ inherent rights
is the correlation between domestic and international regulations.
Practical interest in the research of various aspects of life, physical and mental
integrity protection lies in the need to provide legal and institutional solutions to the
problems the society is facing. As Carlos Casabona said, “Finally, law is the one
proclaiming and also protecting individual and collective values, whether already known
or new and require identification and qualification”. Even in problems deemed solved,
new arguments are discovered which in the past were sufficiently compelling, debates are
resumed; they are all placed in the new light of reality, and can generally be referred to as
and outlined as a field the Bioethics.
The legislator has faced major obstacles in regulating new social realities caused by
the progress of biotechnology and biomedicine, their legal qualification requiring a deep
understanding of the scientific aspects. If until now the legislator wanted to wait for a
clear report on the impact of these revolutionary discoveries, we realize now that such
discoveries are part of our daily life and it is imperative that they become regulated.
1 Published in the Official Gazette Part I, no. 189 of July 22, 1994.
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II. Biotechnologies. Biomedicine. Bioethics
The twentieth century is replete with crucial scientific discoveries and technological
innovations which have profound effects on the interpersonal relationships, but also
social and economic impact. Improvements in molecular biology are revolutionary and
they go to the very origin of life. Applications of these new findings are extremely
various and affect many aspects of daily life. Examples may be found in health, forensic
medicine and administration of justice, pharmaceuticals, studies on human populations
and human beings evolution. Also, biotechnologies apply in industry, agriculture and
animal husbandry.
Along with these applications, there are others which raise far more difficult ethical
questions. These include assisted procreation, experimentation on embryos, therapeutic
and also reproductive cloning, intervention on human genes and creating hybrids or
chimeras. Many of them have became reality or their practical achievement is only a
matter of time;, however, most states are facing a legal and institutional void in the field.
The main international or binding texts on human rights are cautious when dealing
with Life Sciences. The Universal Declaration of Human Rights and the (European)
Convention for Protection of Human Rights and Fundamental Freedoms (hereinafter the
European Convention) do not contain any specific provision. Through an extensive
interpretation, under certain conditions, some attacks upon the person’s integrity were
able to fall under art. 2 and 3 of the European Convention1. Only the Covenant on Civil
and Political Rights stipulates in art. 7, that “no one shall be subjected without his free
consent to medical or scientific experimentation”. International Organizations, aware of
this legal void, have focused their attention on these issues. Since the early 80s of the last
century, the Parliamentary Assembly of the Council of E urope, answering the
international echoes, demanded that social, ethical and legal implications of the
development of biomedical sciences to be treated from the perspective of human rights.
We will present some specific tools adopted internationally and nationally, to
illustrate the interest in developments in medicine and biology and the need to develop
legal norms in this field. The first legal instrument in the field, but with a universal
vocation, was the UNESCO Declaration on the Human Genome and Human Rights
(1998). It referred to human dignity, the principle of responsible research and proclaimed
the human genome as part of the joint heritage of humanity, protecting the human species
itself.
The European Convention on Biomedicine and Human Rights2, adopted in 1997 by
the Council of Europe, is the first binding international legal instrument in the field. The
aim of this Convention is to protect the human beings from the scientific practices
prohibited or the ethically unfair or deviant medical deeds. Through it, the human being is
protected during the various stages of its development, from embryo to person and is
dedicated to the rule of human being. An important element at European level is the
1 See Ch. Byk, Bioethique et Convention européenne des droits de l’homme, in L.E. Pettiti, La
Convention européenne – article par article, Dalloz, 1995, p. 101-121.
2 See the text in International human rights instruments, vol. II, regional instruments, IRDO Vth Edition,
Bucharest, 2002, p. 692.
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Charter of Fundamental Rights of the European Union (the Charter)1, originally
incorporated in Title II (“Fundamental Rights in the European Union”) of the draft
Constitutional Treaty which sought to establish a Constitution for Europe and which
expressly stated in its articles the person’s right to physical integrity. Currently, according
to art. 6 of Treaty on European Union, the Charter has acquired the legal status of an
establishing Treaty.
As part of this law, eugenic practices, transforming the human body into a source of
profit and reproductive cloning are prohibited. In addition to these, one can add many
resolutions, recommendations and declarations of the Council of Europe, UNESCO or the
European Union.
The numerous National Bioethics Committees and the like empowered to establish
criteria and guidelines for future legal regulations and which are also responsible for the
draft legislation in the field should also be mentioned. Pioneer in this regard was the
French National Consultative Ethics Committee, which began its work in 1983 and which
has greatly contributed to the development of the 1994 French law on the human body2.
National legislator's intervention in genetic issues was done through special laws (such as
in Spain, UK, France), through the provisions of the Criminal Code, as, for example, in
Italy, or even through constitutional provisions (Switzerland, Greece).
Science proves a morally ambivalent character and this is especially true for genetic
experiments.
Interventions on the human genome affect the integrity of the individual and may
even threaten the human species. Threats arising from the improper use of biomedicine
are targeting, in particular, the origin of human life, since it is the subject of studies
research. The following question should be raised: what will be the results of such
techniques when the latter occur early during intrauterine life and which is the way to
protect the embryo?
Border delimitation of the right to life is one of the main issues this studies research
brings to the forefront. While the American Convention on Hu man Rights protects
everyone’s right to life “from the moment of its conception” [Art. 4 para. (3)], in Europe,
the European Convention3 is not as explicit and talks about a person's right to life.
Although the approach adopted by most national legislators seems to follow the European
Court of Human Rights (ECHR) opinion that the right to life is acquired at birth4,
emerges also the view that, between the moment of conception and birth, human beings
have yet to receive certain protection and not to be subject of abusive practices. The
European Convention on Human Rights and Biomedicine5 provides human beings with
protection, a notion used due to its general nature, although it admits only the person as
1 See Draft Treaty establishing a Constitution for Europe, the European Convention, Office for Official
Publications of the European Communities, 2003.
2 See L. Lepienne, Vers une bioethique europeene? L’exemple de l’embryon humain, Notes de la
foundation Robert Schuman, 2003, p. 56.
3 See the European Convention, adopted at Rome on November 4, 1950 and in force since September 3,
1953. Romania has ratified the Convention and its additional protocols by Law no. 30/1994 (the Official
Gazette Part I, no. 135 of 31 May 1994).
4 See ECHR, X v. the United Kingdom, May 13, 1980, no. 8416/1979.
5 See the text in International human rights instruments, vol. II, Regional instruments, IRDO, Vth
Edition, Bucharest, 2002, p. 692.
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the right holder. Thus, art. 14, concerning the prohibition of sex selection, talks about “the
child to be born”. According to Art. 15, principles governing scientific research concern
“the human being”, and art. 18 concerns research on “embryos in vitro”. End of life issue
is not addressed in the text of this Convention, but references are found in the Additional
Protocol on transplantation of organs and tissues of human origin.1
The so-called “new eugenic practices” that try to improve the human species have
stirred contradictory reactions. Such practices are designed to prevent the birth, survival
and reproduction of individuals suffering from various disabilities, serious illnesses,
through sterilization, preconception genetic testing and prenatal diagnosis. Parents’
responsibility to prevent the birth of children with serious illnesses or disabilities is
claimed in support of such interventions. The arguments are not only moral, but also
related to more practical issues, namely the necessary health care costs. Legislation in this
respect also exists in China since 1995, compelling all the couples who wish to marry to
undergo a medical test to determine whether or not they suffer a hereditary defect.
On the other side, art. 3 para. (2) let. b) of the Charter of Fundamental Rights of the
European Union2, prohibits the eugenic practices, in particular those aiming at the
selection of persons.
Obviously, such legislative proposals raise the question of distinction between
normal and abnormal, between different and disability3. Without appealing to a right to
procreate or the right to found a family (Art. 12 of the European Convention), it is clear
that non-consensual voluntarily sterilization affect the physical integrity of the individual
and is placed on the grounds of art. 3 of the European Convention4.
A disturbing matter is also cloning classified by scientists in therapeutic and
reproductive according to the objective pursued. The practical uses of cloning are very
varied. Geneticists’ initial objectives were aimed at exclusively agricultural applications,
seeking unlimited reproduction of effective farm animals. They also aimed reducing the
number of laboratory animals, providing the scientists with specimens that no longer
differed from each other.
Either the national or international legal instruments in the matter prohibit
reproductive cloning, citing the uniqueness of the human being. But if the announcement
of some groups of researchers about the birth of a child through cloning is true, the debate
which appeared out of this world premiere cannot be confined to legitimizing or to
criminalizing this practice.5 Along with philosophical, religious or moral arguments,
strictly scientific or medical arguments should also be brought, to analyze the advantages
or disadvantages of this procedure as objectively as possible. Several situations could
justify, in theory, the creation of a human through cloning. Thus, cloning may provide
sterile couples, those bearing hereditary diseases or even homosexual couples who refuse
sexual reproduction with a solution. The possibility of reproducing a dead child whose
1 See Ch. Byk, La Convention européenne sur la biomedicine et les droits de l'homme et l’ordre
juridique international, in „Journal de Droit International” no. 1/2001 49.
2 Published in O.J.E.U.N. C 83 of 30 March 2010.
3 See C. Casabona, Biotechnology, Law and Bioethics – Comparative perspectives, Bruylant, Bruxelles,
1999, p. 42.
4 See the ECHR, X v. Denmark, rule of March 2, 1983.
5 See Le Monde, January 5, 2003, www.lemonde.fr
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cells were taken before death or the creation of a child as a potential donor for his/her sick
sibling is even more shocking.1
With respect to these techniques, it was said that the human genome should be
specifically protected as a key element of the heritage of humanity, being regarded even
as a sacred component. There is a risk that this defensive attitude might fail to sufficiently
take into account the potential benefits of the therapeutic genetic interventions that will
improve the quality of life. With regard to the genetic inheritance of the individual, the
European Convention on Biomedicine expands its protection to “future generations”, as a
result of the awareness of some irreversible damage to the genetic human heritage.
Hazards no longer exclusively concern the society or the individual, but the very human
species. Article 13 illustrates this logic, because it allows intervention on the human
genome only for medical reasons and only if the goal is not to change the “progeny
genome”. However, it should be noted that purposes and not the indirect consequences of
medical intervention are being repressed. An example in this respect is the Additional
Protocol which prohibits “reproductive cloning”.2
Closely related to the protection of life and integrity is the relationship between
fundamental rights and freedom to conduct scientific research. Rightly, the European
Convention on Biomedicine and Human Rights does not blame progress in biology and
medicine, but its improper use. Therefore, guaranteeing human rights concerns only the
applications of science, the freedom to research for progress and the right to know. The
limits of scientists’ work and genetic science applications must be the respect for human
rights and human dignity.
Another aspect of Bioethics falls within the biodiversity and the way new research
influence the environment. Internationally, many statements admit a human right to a
healthy environment and its importance to human health and life. The most important
instruments in the field are The Stockholm Principles in 1972 and the Rio de Janeiro
Declaration in 1992. They state that “Man has the fundamental right to freedom, equality
and adequate conditions of life, in an environment of a quality that permits a life of
dignity. He bears a solemn responsibility to protect and improve the environment for
present and future generations”. The right to water and sanitation, the right to silence, the
right of nature, etc., are considered particular elements of the right to environment.
The proposal for listing these rights among the fundamental human rights has been
criticized on the grounds that it had a way too abstract content. In addition to the lack of a
well defined legal content, the absence of any binding regulation to allow effective
protection is also added.3 However, the role the environment plays in influencing human
health and life cannot be denied. Broadly speaking, the right to environment concerns
man and the natural elements surrounding man to the extent they form an inseparable
whole. It is about the right to a healthy environment and its quality, enabling personal
development. It can be seen even as a right of mankind which brings benefits both to man
and the environment the man lives in4. Following the 2003 amendments, the Romanian
1 See Le Monde, January 7, 2003, www.lemonde.fr
2 See Ch. Byk, La Convention européenne sur la biomedicine et les droits de l'homme et l’ordre
juridique International, in „Journal de Droit International” cit. supra, p. 61.
3 See J. Robert, Droits de l’homme et libertes fondamentales, Montchrestien Publishing House, 1994,
p. 65.
4 See M.Prieur, Droit de l’environement, Dalloz, Paris, 1996.
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Constitution expressly establishes in Art. 35 the right to a healthy and ecologically
balanced environment.
Social debate on discoveries in genetics and biology in general should include much
more issues than those listed above, especially in the light of rapid developments that
cannot be entirely foreseen at present. The debate should take a multidisciplinary
approach and include not only jurists, so that to better integrate into different ideological
and cultural perspectives. The feeling of fascination inspired by the constant scientific
progress should not distract from an essential aspect: the individuality of human beings; it
is not the result of the biological components alone. The Law pertains to Social sciences
which work precisely with the conceptual world of human values and ideals. Therefore,
one must take into account human being's non-repeatability and human species’ diversity,
characteristics to be transmitted to future generations. All these concerns should be
reflected eventually in the work of the legislator which will choose carefully between
what exists naturally and what can be created.1
Increasingly more, advances in biomedical science and technology give rise to
fundamental challenges to the everyday human practices and to the way we think, feel
and act. Therefore, it is not surprising that Bioethics addresses issues related to the very
essence of humanity: birth and death, body and mind, sickness and health, freedom and
dignity, etc.
When reviewing the current state of scientific progress and the actual impact it has
on society and the individual, the legislator must appear extremely realist. Legislator’s
conclusions and solutions should be based on contemporary realities or elements that will
take shape in a relatively short period. Legislator should get the best of information and
understand the scientific issues to avoid premature and exaggerated reactions. But these
are cautions to be considered only by the practitioner. From this point of view, the
doctrinarian enjoys great freedom. He can stop not only on very actual issues concerning
our society, but may also look ahead and provide hypotheses and valid solutions in a very
distant future. Thus, the doctrine fulfills its duty to guide the practitioner by submitting to
the debate, in advance, what will be news for the legislator over tens or even hundreds of
years.
This part of the paper aims to investigate the possible hypotheses the humanity will
face as it shall achieve more and more of the today's goals. In 50 years we can expect that
many of today's experiments become effective procedures. Thus, whilst today is
recording a high rate of failures, cloning is likely to be perfected. Moreover,
transplantation of organs that are produced in the laboratory either from living cells or
using technology could become, in one form or another, a standard procedure. In addition
to these examples, there are a lot of innovations and research, all directed towards
prolonging life and improving its quality. Since our existence and actions are deeply
influenced by our awareness of a finite life, we should ask ourselves in what way we
might be affected by a change in this reality. Remains to be seen how far biotechnology
can lead us towards acquiring immortality, but we have to wait until then to reflect on
what immortality would mean or at least, the average life expectancy’s considerable
extension.
1 See C. Casabona, op. cit., p. 37.
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Nature is likely to make mistakes and often its work is imperfect; the human being is
no exception, our bodies grow old and eventually fail, and our powers are limited. From
the very beginning, man has been aware of its many natural limits related to his needs and
desires. A result of this awareness is that we are human, but we have created gods; we are
mortal, but we have created the concept of immortality. Although we are far from being
all-powerful, we have the unique ability among the creatures of the planet to shape our
environment and ourselves according to own will. Modeling own nature into something
closer to our ideals has proven to be an irresistible temptation. To this end man made use
of science and especially of medicine. It is expected that this race with nature shall never
reach an end, ending up with getting the man increasingly forth in his attempt to gain
youth without age and life without death.
A starting point for this discussion could be continuous improvement of quality of
life. This is an undeniable trend even today and will become even more obvious in the
future. The aim seems to be the elimination of any suffering, illness, and disability.
However noble and commendable this approach would be, sometimes it goes even
further, trying to draw the human body according to the ideals of society at a particular
time. This is plastic surgery and increasingly more people are turning to. Under these
circumstances, it is possible for man to go so far as to replace parts of his body to get the
desired results. In an increasingly competitive society, prostheses may become not an
extreme solution, but a desirable component. We can already imagine a continuous race
to get the latest innovations in the field and thus keeping us ahead on the labor market, in
sports, or even in social life.
Many authors of science fiction works have already foreseen that, in a society where
human beings have turned to technology to improve their performance, the issue of
equality between people will emerge. If we can imagine the athletes who will always
want to buy a “lead”. Doping cases are already common. In the future, the rules of fair
play will have to regulate other cases, too. Another issue of equality between people will
be the equal access to these new technologies. In a world where most of the population of
underdeveloped countries suffer from diseases eradicated in other parts of the world due
to lack of access to modern medicines, it is expected that discrimination issue to be
perpetuated.
But these methods will not affect only the individual, as they remain subject to its
free consent because, with the help of eugenic practices, one will work on the human
species itself where “progeny genes” are their object. We can talk about evolution, but
about one that will no longer be governed by the laws of nature, but by those of the
human will. The question is in what way will affect these innovations the values of the
society. Will the technology unaltered man as representative of what is truly human be put
first, or the “improved” man?
Another topic of discussion is prolonging life, possibly indefinitely. To give some
concrete examples it is sufficient to look at some recent technological innovations, some
of them tested only on animals, but others already used by people. One can imagine worn
parts replacing procedures, or improve those still operational or stop the whole biological
process of aging to get forever young bodies. As regards the first hypothesis, research on
stem cells should be mentioned1, that can be stimulated to grow in any organ or tissue of
1 Stem cells are undifferentiated cells capable of self-replication and able to become different types of
specialized cells. They originate either from the bone marrow or from embryonic cells. Acc. The Gale
Encyclopedia of Science, 3rd Edition, vol. 1, Ed. Thomson-Gale, 2004, p. 43.
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the human body. As regards the second hy pothesis, already exist some substances that
when injected into tissue, they substantially alter the responses to environmental factors
and could change its genetic structure in the future. Regarding the last hypothesis, recent
discoveries have shown that lifetime of certain species of worms or flies and may be also
doubled for mammals.
Given the wide range of ways the future society will have to choose from, it is
natural to ask whether it is necessary to establish limits. The right to life has been
enshrined among the most important inherent rights of the human being due to awareness
of its fragility. Once the removal of death, in what way its content will still be defined and
what means of protection will be needed? If the today’s trend is to eliminate any
limitations in what concerns this right, such as the death penalty, we may face the
opposite hypothesis in the future. Provided that one can be kept alive and functioning
normally for an increasingly longer period, it shall be necessary to impose certain limits.
This can be justified by the overgrowth of population or the difficulties of social security
systems, but also by the right of the future generations to be born and to follow the life
cycle.
Throughout human history, perpetuating the species and the new generations were a
form to ensure immortality of each individual who wanted to be represented in his
followers. When life can be substantially prolonged (in developed countries, in the last
century, the average age has already been doubled), this need will be greatly reduced,
threatening the very existence of future generations or their right to assert themselves in a
world dominated by the much more experienced and still able to function normally. One
can question whether it will be necessary to establish the “duty to die” and then at what
age. All these aspects will redefine the contents of the right to life.
It is estimated that we are now in the early age of biotechnology and we benefit only
from its first steps. The advantages are obvious in terms of treatments for diseases
incurable until now; prolonging life and improving physical as well as mental sufferings.
For all this we must be grateful to the researchers. But being aware that their actions are
just starting out, we must also be aware of the pitfalls and dangers we are exposed to. The
same advantages can be easily transformed into a threat to our security, freedom and even
humanity. In this context, there is the increasingly visible issue of limiting the work of
scientists.
An initial issue is related to the dynamics of the human species. Respect for the
human being’s uniqueness was largely fueled by the mystery surrounding life in general.
But the scientific research results encourage us to look at man as a combination of
different chemical elements arranged in a specific order. The conclusion is that when the
human equation is finally resolved, any laboratory can easily reproduce man. In these
circumstances, what remains to individualize man and protect his freedom of choice? If
human species itself will be the one that will be changed, the question is whether the right
of future generations to decide their own fate will not be stolen. Would such right be
admitted?
Use of scientific advances is likely to shape human beings according to the society’s
needs and demands at a given time. Particular attention should be given to the values that
shall govern these changes. Although our actions are often justified by the positive
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finalities, there should be established a rigorous system of monitoring science
applications, because history teaches us that new discoveries are often diverted from their
original purpose.
III. Provisions established by international legal instruments adopted in the
New Romanian Civil Code.
The respect due to the human beings and their inherent rights is contained in Title II
“Natural Person”, Chapter II of The New Civil Code of Romania1 and is divided into 4
sections, as follows:
Section 1. Common Provisions, Section 2. Rights to life, health and physical integrity
of the individual comprising: Art. 61 entitled “Guaranteeing the rights inherent to human
beings”, Art. 62 “Prohibition of eugenic practices”, Art. 63 “Interventions on genetic
characteristics”, Art. 64 “Inviolability of the human body”, Art. 65 “Genetic
characteristics examination”, Art. 66 “Prohibition of patrimonial acts”, Art. 67 “Medical
interventions on individuals” Art. 68 “Harvesting and transplantation from living people”
and Art. 69 “Court referral”, Section 3 “Respect for human life and human dignity” and
Section 4. “The respect due to a person even after death”.
We will focus on the provisions of Section 2 articles to show that the Romanian
legislator adopted within the Civil Code the latest international provisions in the matter
and certain constitutional provisions as well.
Article 61 contains two paragraphs; the first gives satisfaction to art. 22 para. (1) of
the republished Romanian Constitution, and the second paragraph resumes art. 2 of the
Convention on human rights and human dignity with regard to application of biology and
medicine. The Convention on Human Rights and Biomedicine signed in Oviedo on April
4, 1997 was ratified by the Romanian Parliament through Law no. 17/2001
Content of art. 61 para. (2) of the new Civil Code stipulates that: “The interest and
welfare of human beings must prevail over the sole interest of society or science”.
Without effort, it is easy to see that the human being is above the society, above science,
and above any application of discoveries in biology and medicine.
Art. 62 para.(1) speaks of the human species’ intangibility and regulates that “no one
may prejudice the human species”. Para. (2) shows that eugenic practices of any kind are
prohibited, so that organizing the selection of individuals should be excluded, as they
should be born and then undergo selection naturally, without any outside intervention.
The legislator makes all the efforts to show that there are yet exceptions which are
materialized in art. 63 showing that intervention on genetic characteristics are accepted
for genetic diseases prevention and treatment. Para. (2) of Art. 63 states that “Any is
forbidden intervention aimed at creating a human being genetically identical to another
human being, alive or dead, and creating human embryos for research purposes”.
Research has been not rarely cited in creating embryos, but behind these practices
inhumane and undignified actions were actually hiding, being incompatible with the
protectionist vision of the human being.
1 Law no. 287/2009 on the Civil Code was published in the Official Gazette Part I, no. 511 of July 24,
2009. Pursuant to art. 218 of Law no. 71/2011 it was republished in the Official Gazette Part I, no. 505 of
July 15, 2011, being subsequently amended.
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Para. (3) of Art. 63 states that medically assisted human reproduction is not allowed
for choosing future child's sex unless they invoke avoiding a serious hereditary disease
linked to its sex. This paragraph is in fact a takeover of Articles 13-14 of the European
Convention.
Article 64 is stated as a conclusion in para. (1) whilst claiming: “The human body is
inviolable”, para. (2) confirming that one cannot prejudice the integrity of the human
being, except in cases and under circumstances expressly and restrictively provided by
law. Scientific research or other medical reasons entitle the examination of an individual’s
genetic characteristics if done according to the law, as provided in par. (1) of Art. 65 of
the new Civil Code. Likewise, para. (2) shows that identification of an individual based
on their genetic marks can be performed only in a civil or criminal proceedings, as
appropriate, or for medical or scientific research carried out in compliance with the law.
Nowadays' cruel reality revealed that the human body elements or products have
been the subject of transactions between people who thus gave patrimonial values to the
of the Human Being with regard to the application of biology and medicine signed in
Oviedo speaks in art. 21 on the prohibition of concluding patrimonial documents covering
parts of the human body, its elements or products; this prohibition has been transposed
into the Romanian Civil Code, namely in the provisions of art. 66.
Art. 67 of the new Civil Code states that “No individual shall be subjected to
experiences, testing, harvesting, treatment or other interventions for therapeutic or
research purposes except in cases and under the conditions expressly and exhaustively
prescribed by law”.
In Romania, the way organs, tissues and cells of human origin may be collected and
transplanted from living donors is regulated. However, in art. 68 paragraph (1) of the new
Civil Code the legislator shows that written, free, prior and express agreement is needed
from people who are to be subject of the harvesting organs procedure after they were
informed in advance about the risks of the surgery. However, if the donor changes his/her
mind on the consent given until harvesting time, the intervention is canceled
Paragraph (2) of Art. 68 shows the categories of persons from whom the harvesting
of organs, tissues and cells of human origin is prohibited, namely minors or persons alive,
without judgment due to a mental disability, a serious mental illness or another similar
reason.
Section 2 ends with art. 69 stating that, at the interested person’s request, the Court
may take all necessary measures to prevent or stop any illegal prejudice to the integrity of
the human body and to order compensation for the damages suffered in accordance with
art. 252-256. Thus, the holder of proceedings can be any interested person, not just the
person whose right to body integrity is injured.
IV. Conclusions
We have succinctly considered one of the most important fundamental human rights
and we’ve stopped for examining the new Romanian legislation dedicated to the rights
inherent to the human being from the perspective of Biomedicine, Biotechnology and
Bioethics, which must follow the first two. We took into consideration the personality
12
rights of human beings as bio-psychological entities (the right to life, the right to physical
and mental integrity), and we did not treat personality rights defining human beings as the
subject of affective and emotional states and relationships (the right to dignity) and we
did not want our trip to reach neither the social dimension of the rights protecting humans
(the right to privacy, the right to own image and so on). We wanted to point out only that
the Romanian legislation, through the New Civil Code, once again reaches maximum
levels of exigency in this matter and we believe that legislating (regulating) is the only
effective way to protect these rights.
A huge drawback appears clearly as a result of our analysis on the issues mentioned
above, namely that the legal void, the lack of clear and precise rules in this area, in any
country in the world, is a real loophole that could be exploited by the outlaws who have
outstanding pecuniary and technical resources and concerns the violation of the rights
inherent to the human beings.
An effective method of protecting these rights is for all the countries, if not adopting
their own legislation in this field, to embrace and / or borrow the existing international
legislation.
References
1. Byk, Ch., Bioethique et Convention européenne des droits de l’homme, in L.E.
Pettiti, La Convention européenne – article par article, Dalloz, 1995.
2. Byk, Ch. La Convention européenne sur la biomedicine et les droits de l'homme
et l’ordre juridique international, in „Journal de Droit International” no. 1/2001.
3. Casabona, C., Biotechnology, Law and Bioethics – Comparative perspectives,
Bruylant, Bruxelles, 1999.
4. Lepienne, L., Vers une bioethique europeene? L’exemple de l’embryon humain,
Notes de la foundation Robert Schuman, 2003.
5. Prieur, M., Droit de l’environement, Dalloz, Paris, 1996.
6. Robert, J., Droits de l’homme et libertes fondamentales, Montchrestien Publishing
House, 1994.