Lecture: Human Rights and Bioethics
Human Rights and Challenges of XXI Century
General
Concept:
I.
Concept of Human Rights: Human rights are rights inherent to all human beings,
whatever our nationality, place of residence, sex, national or ethnic origin,
color, religion, language, or any other status[1]. In addition, Human Rights including
are also those rights conferred to each one as human being. This clarification
permits us to divide natural HR from positive HR.
According to the theory, Positive
Rights are rights set up by States with the formal character (written law).
Natural HR are rights inherent to all human
beings, whatever our nationality, place of residence, sex, national or ethnic
origin, color, religion, language, or any other status. These rights cannot be
canceled, modified, or changed by States. They concern such right to speech,
right to though, rights to food, rights to water etc. Without Natural Rights
the life becomes impossible.
Positive HR are rights recognized by States (or
international community) and conferred to each people in accordance with the
law. They consist on rights to work, rights to leisure, rights to payment,
etc.
The most important is that both
theories recognize and conferred HR to each people individually as a whole in
spite of State’s ideology.
II.
Human Rights Challenges
In the scope
of this course “Challenges” are difficulties that addressed
mankind in the field of HR and which cannot be resolved only by a State, but
require international cooperation.
International
Cooperation is one of the Principles of the International Law recognized by the
Charter of United Nations (UN). According to the Charter, one of the main
purposes of UN is to achieve international cooperation in solving international
problems of an economic, social, cultural, or humanitarian character, and
promoting and encouraging respect for all without distinction[2].
Pursuant to
the purposes of UN, principles were established such international cooperation[3], which becomes also an international
obligation in the ground of HR.
We can
conclude at first that matters of HR became international issues and secondly
for solving them we need international cooperation.
In spite of that HR issues are
regulated by national or international legislations, some of them still hardly
admitted. Tackling these difficulties relating to HR compulsory requires
international cooperation. Such matters are related to problems on Bioethics,
Biotechnology, Terrorism, Environment and other currents issues of HR.
In this
scope, HR and Challenges of XXI Century consist on solving international HR
rights issues that one State alone is not able to deal with and that requires international cooperation in many
fields as well as politic, economic, social, cultural, security cooperation etc. These issues may differ from
one society to another or involved many States at the same time. For example,
solving migration issues in the framework of European Union, priority of
environment matters in developing countries, terrorism etc. Thus, one State
alone cannot resolve these matters and dealing with them requires cooperation
between States.
Unit
I HUMAN RIGHTS and BIOETHICS
Concept
Human
rights
a) Human Rights: Human rights are rights inherent to
all human beings, whatever our nationality, place of residence, sex, national
or ethnic origin, color, religion, language, or any other status . In addition,
Human Rights include are also those rights conferred to each one as human
being. This clarification permits us to divide natural HR from positive HR.
Natural HR are rights as we already
mentioned inherent to all human beings, whatever our nationality, place of
residence, sex, national or ethnic origin, color of the skin, religion,
language, or any other status. These rights cannot be canceled, modified, or
changed buy States. They are included such right to live, right to speech,
right to though, rights to food, rights to water etc. Without Natural Rights
the life becomes impossible.
Positive HR are rights recognized by
States (or international community) and conferred to each people in accordance
with the law. They rights to work, rights to leisure, rights to payment,
etc. According to the Theory of State
and Law, Positive Rights are rights setup by States with the formal character
(written law).
The most important is that both
theories recognize and conferred HR to each people individually as a whole in
spite of State’s ideology.
Bioethics
In order to understand the concept of
Bioethics issues requiring international legal regulation, particularly in
human rights we must necessarily know the meaning of Biology and medical
sciences as they are interconnected. Commonly Biology is defined as
science of life. And for full definition, Biology is a natural science
concerned with the study of life and living organisms, including their
structure, function, growth, evolution, distribution, and taxonomy. It includes
botany and zoology and all their subdivisions[4].
b) Bioethics: Etymology: Bio at Greek means “life”
and ethos “behavior, attitude, moral”.
Ethics, also known as moral philosophy, is a
branch of philosophy that involves systematizing, defending, and recommending
concepts of right and wrong conduct[5].
Philosophers today usually divide ethical
theories into three general subject areas: metaethics, normative ethics, and
applied ethics.
1. Metaethics investigates where our ethical
principles come from, and what they mean. Are they merely social inventions? Do
they involve more than expressions of our individual emotions? Metaethical
answers to these questions focus on the issues of universal truths, the will of
God, the role of reason in ethical judgments, and the meaning of ethical terms
themselves.
2. Normative ethics takes on a more practical task, which
is to arrive at moral standards that regulate right and wrong conduct. This may
involve articulating the good habits that we should acquire, the duties that we
should follow, or the consequences of our behavior on others.
3. Finally, applied ethics
involves examining specific controversial issues, such as abortion,
infanticide, animal rights, environmental concerns, homosexuality, capital
punishment, or nuclear war[6] and others issues.
According to
aforesaid, Bioethics
are controversial moral concepts arise in biotechnology, Law, Medicine,
Politics, Philosophy, Biology and others sciences, because of development or
advances of Biologic and Medical sciences. As already mentioned, they concern such
problems like the using or production of GMOs, abortion, homosexuality, death
penalty as capital punishment, human cloning etc.
I.
Historic Background on concept of Bioethics
The term Bioethics was coined and used
at first in 1927 by Paul Max Fritz
Jahr, who "anticipated many of the arguments and discussions
current in biological research involving animals" in an article about
the "bioethical imperative" as he called it, regarding the
scientific use of animals and plants[7].
Max Fritz was a Protestant Pastor, Theologian,
Educator and Philosopher lived from 18 of January 1895 to October 1953 in Halle
(Germany). He Bioethics thesis as said based on moral aspect of biology
research and related to it the human being, animals and plants. His opinion was
focused on E. Kant’s philosophy which put Human to the center of the Universe
in accordance with the concept of the metaphysic. For this reason Max
Fritz was recognized as the “father” of the famous popular term “Bioethics”
using by current sciences.
Another researcher, who used and
developed in 1970s Bioethics was the American biochemist Van
Rensselaer Potter. He also used the term with a broader meaning
including solidarity towards the biosphere, thus generating a "global
ethics", a discipline representing a link between biology, ecology,
medicine and human values in order to attain the survival of both human beings
and other animal species[8].
Now a day, the using of the term
Bioethics involves the whole areas of human activities and even had become
according to researchers inter-disciplinary subject for ones and for others, a
special scientific discipline. Without taking part to this polemic, for us the
most important is how arise matters related to Bioethics in jurisprudence
(Law), how is it regulating and which challenges peoples address.
II.
Importance of Biological Research
The Biological research has reached an
important top and has become one of the most achievements of humanity at last
centuries. Biologic research allows in solving a lot of problems faced human
being. Many solutions are found for many problems, particularly in the ground
of food insufficiencies, medical cure, fighting against criminality, etc.
Right to food is a natural right
belonging to everyone. Yet, in the past as now many peoples are continued to
suffer of the hungry, particularly in the Developing countries. Many peoples
are dead each year because of the lack of supply food. According to Food
Agriculture Organization of United Nations (FAO) more than 870 million peoples
still are hungry[9].
In this case the Biologic Research
becomes an important factor in the way to tackle hunger. It permits plants
breeding to increase productions. The using of fertilizers in agriculture and
other new technologies become necessarily an important element in realizing of
the right to food and related to its others rights.
The medicine achievement at last
century is incontestable. The discovering of DNA (Deoxyribonucleic acid) by
using of cells opened more perspectives, opportunities and achievements in the
medicine for thousands of peoples. DNA is a molecule encoding the genetic
instructions used in the development and functioning of all known living
organisms and many viruses. Because of DNA many medical realizations such
transplantation, repairing cells and others medical prowess are possible.
Even some
proves during trials have not been possible without DNA manipulations. DNA
research and its using by criminology is one of advances of the Biology. Some
crimes committed many years ago now can be proved with using of DNA. Origins of
some wilds life are known because of using of DNA.
As conclusion
the Biology and medical researches are important factors in solving many
problems related to diseases, which a longtime threatened the mankind. Biology
researches are solutions to food problem. The world population growth now reaches 7 billion peoples
and continues to grow. In this situation the biologic researches in the field
of GMOs become one of the challenges for international community. So it is
important to encourage biologic actions in these areas by providing legal and
material resources.
Yet, a lot of
problems arise in this will to the development. At first the problem concerns
the security of the human being regarding the quality of the results of these
researches, particularly in food. The second problem refers to the impact of
results of biologic manipulations on environment and persons. Third problem
consists on limitation of the prowess of biologic researches as they may exceed
the human understanding. This last problem calls on to the moral aspect of
biologic and medical researches known as BIOETIHICS.
III.
Major issues of bioethics requiring legal regulation
The world is
composed of many politic, social, cultural, religious and economic systems
requiring equitable consensus to bioethics issues. Many of these social groups
are not in favor to the scientific progresses because of ethics issues.
Megan-Jane Johnstone referring to Edel and
Sikka thinks, that bioethics is culture-bound discourse and, as such, is often
inadequate for guiding and remedying ethical disputes underpinning by
conflicting cultural values and beliefs about health and human life[10]. For her cultural bioethics is a
response to each cultural group to manage the problems of death knows as
“Terror management Theory” (TMT).
Bioethics appear in politic live of
many countries. For these purposes many politic parties are constituted and
known as “Green Parties” or “Ecologist’s Parties”. Generally they are
protesting against all kind of introduction of samples GMOs in agriculture and
the uses of fertilizers which may have a negative impact on the human health
and the environment.
The intervention of biology in
different social and cultural life is not always shared opinion. This criticism
regard to the religious and cultural conviction of each social group. The
criticism is focused on the way researches are conducted and their results.
1.
Different Conceptions on Bioethics and HR
Religion is
one of the main reasons of controversies to bioethics. Each religion has its
own position to the questions of bioethics. Religious bioethics sometimes
completely opposed to the modern secular bioethics. Let analyze the positions
of some main world religions such Christian, Islam, Judaism and Buddhism.
a) Christian Conception on Bioethics
and HR
Issues of bioethics are particularly
interested scientists at the end of last century and the contemporary time.
Bioethics becomes studying object by philosophers, health care holders, lawyers,
theologians etc. Many researchers such
Nichola Capaldi, Tristram Engelhard, Megan-Jane Johnstone, Antonio Barbosa da
Silva etc. had paid many attentions to the Christian bioethics.
The Christian Bioethics consists on
how Christians according to their faith think about the human’s life, the
sexuality, the health care, the medicine, the suffering, the illness, the
death, etc.
To opposition, the now-dominant secular
morality is framed in terms of cardinal affirmations of liberty, equality,
social justice and human dignity that establish individual decision makers as
the source of moral authority and the moral orientation[11].
As said, Megan-Jane Johnstone that the
preoccupation of each person is the anxiety of death[12].
n this scope one of aims of religion is to solve this anxiety and help
people to die with dignity.
Traditional Christian morality and its
bioethics according to Tristram Engelhardt are framed in terms of obligations
to God who commands and who is the source of moral authority and the point of
moral orientation[13].
The Christian concept of Bioethics is
guided by the God’s view of the life. For the Christian, God gives the life and
all things related to it. In this way the traditional Christian bioethics
forbids human embryonic stem-cell research, abortion, physician-assisted
suicide, and euthanasia, while also rejecting any sexual relations outside of
the marriage of a man and a woman. It prohibits surrogate motherhood,
reproduction using donor gametes, and treatment of sexual dysfunction in homosexual
couples[14].
Up to now the Christian bioethics is
against the using of pills and condoms, practicing abortions. It considers the
health as a God’s gift and the
suffering, the illnesses, the disability and the death as punishment to
mankind, particularly for those who do not obey God’s principles and sin.
In this way the secular bioethics
regards opposed to the Christian bioethics in the contemporary world. May be
it’s the time to the Christendom to review its position about the life care
because of its absurdity and archaism. Critics to Christian bioethics now a day
are very strong and treat the Christianity as one of the main impeachments to
the development. In this case, it is important to underline that the
Christianity up to now did not improve the human life by its metaphysic and
ethics concepts and continues to remain thousands of peoples in ignorance.
Therefore we thank that its time for the Christendom to accept some secular
bioethics principles in order to help many peoples to use the benefits of the
scientific progresses.
b) Islam Conception on Bioethics and
HR
Islam
conception on bioethics is one of the main religious conceptions of bioethics
based on Muslims world-views related to “three realities” namely God, Humanity
and Cosmos[15]. This concept is one of traditional
and conservative Islam principles of the
live. At this way it did not differ from Christian bioethics as it opposed to
the current secular view of bioethics.
For Muslim
only Allah (God) is able to provide life and decide about everyone, from the
life conception to the death beyond the life. For these purposes any kind of
relationship outside of the relation between men and women is unacceptable. Any regulation of
procreation is against Allah’s worldview and must be prohibited.
There is
divine Islamic understanding of the human body, which not allowed
transplantations of the human organ tissues. As explained Abdulaziz Sachedina,
Islam human beings have responsibilities as stewards over the body, which is
understood as divine gift, not a private property. This stewardship entails
certain Islamic restrictions in the treatment of the body both during mortality
and post-mortem to avoid violating prohibitions of desecration and mutilation[16]. For this reason, medical care
leading to organs transplantation is viewed as a sin.
At this last
time, because of growing of Islamic radicalism the progress of medicine and
biology, the matters related to Islamic bioethics become more and more strong
as well as they oppose to the new secular order. Homosexuality, abortion,
euthanasia or death assisted, human stem cells researches and other
contemporary medical and biological advances are not welcomed into Islamic
world.
As conclusion
Islamic bioethics oppose to secular bioethics. This confrontation constitutes
an impeachment to the development of the society and new arisen matters related
to human rights challenges.
c) Jewish or Judaism Conception on
Bioethics and HR
Judaism is a fundamental Jewish
religious that has an important conception on bioethics. If Christian bioethics
and Islamic bioethics are radical about the secular bioethics, particularly on
understanding of the human being, the life, the suffering, other side, the Jewish
bioethics view is more controversial, because it based on different
interpretations or commentaries of the “Halachah” made by Rabbinic.
“Halachah” is case or rule-based law
of the peoples of Israel based on precedent filtered through Talmudic literature
and its commentaries as well as
discussions of specific cases from the past, the responsa literature[17].
Different commentaries of “Halachah”
by different Rabbinic open wider worldview on the matters related to bioethics,
which can be divided in two groups. The first group concerns are those who
supports the traditional Jewish religious view. The second group includes
liberal point of view about ethics problems.
The first group is more fundamentalist
and refutes all kind of interpretations of the “Halachah” in the favor of the
secular understanding of bioethics. For peoples who are supported such point of
view, only God gives live and only he might take it. This worldview is
expressed in the Bible by the locution “God has given, God has taken” (Jacob
2). There is not too different between their position and those supported by
Moslems as we already mentioned who think that our body is God property and we
are just the users[18].
Of course, this position limits
physician (doctors) interventions in terms of secular understanding of medicine
and rejects all kind of discourses in this scope. This group opposes to the
second one.
According to the second group, Jewish
bioethics relies on permission to heal in Talmudic statements[19].
Even the Talmud in some cases solves the problem of human clinic
experiment by concluding that in situation of a certain danger to life,
potential relief may be pursued, despite its own risk[20]. This situation gives a huge
possibility for physicians and autonomy of choice for patients.
Again we can conclude that matter of
bioethics in Jewish society as previously Christian and Islamic bioethics is
subjected to discourses that are no going to be quite soon.
d) Buddhism Bioethics and HR
The Buddhism
is nontheistic religion which differs from Judaism, Islam, and Christendom.
Buddhism can be interpreted as philosophy of harmony between human being and his surrounding environmental
life based on the conduct or behavior of the person in the society. Buddhism
principles are known as principles of “the Dhamma” teaching. “The Dahmma
teaching contains the main rules of life according to Buddhism that must be
observed everyone who believes in it.
The aim of
Buddhism as every religion is to help peoples to manage their life and so to
solve the problem of death and suffering. In this way the Buddhism play a particular role
in the life of thousands peoples.
Buddhism
bioethics so far is
opposed to others religious bioethics but shares with them many points of views
as its first percept prohibits the artificial taking of life[21]. As rule, suicide also is not
permitted[22]. These rules are fundamental for
every person, who practices Buddhism.
Yet,
according to Buddhist norms some practices are allowed in several cases. For
example, there are some cases, when taking one’s life to save the others lives
allowed. That is known as noble case[23].
Another noble case is suicide to
escape from an incurable illness that is an obstacle “nibbana” (painful – my
cursor), the final release from the wheel of life and death. Whether there is
another exception, which would allow the terminally ill patient to refuse the
extraordinary measures for preserving his life or allow a doctor, requested by
his patient, to assist the latter to end his life when there is no hope for
recovery[24].
Principles of justice, compassion and
veracity are other worth of Buddhism. The principle of justice is based on the
principle of equality between peoples as fundamental human right that must be
respected particularly by the physicians during their work. In terms of
veracity principles the doctor must tell only truth to the patient about is
disease in opposite to the Greek culture explained by Megan J. Johnstone[25].
In comparison to the others already
mentioned religions, Buddhist bioethics is more closer to secular bioethics
based on human rights, freedoms and self-determination of each person. There no
any compelling to the metaphysic which up to know is not able to give answers
about the life, thus continues to remain the mankind in fuzzy (vague) world. To
solve these discourses between different societies, juridical norms are setting
as agreements at national as international levels known as Law.
2. International
mechanism on bioethics
The questions of bioethics are dealing by many international,
regional, national and local mechanisms. At international level the issue of
bioethics are regulated first of all by the UN and the Council of Europe and
their specialized agencies and bodies. At UN level that is the prerogatives of
the UNESCO. Ended the UNESCO constitutes a platform for all discussions about
bioethics as the Organization is responding for the question of education,
sciences and culture. The International
bioethics committee, the Intergovernmental bioethics committee, the Assisting
bioethics committee, the World commission on the ethics and the scientific
knowledge and technology (COMSET) and the Inter-agency committee on bioethics are the permanent bodies within the framework
of the UNESCO responding for the bioethics issues in the UN system.
International
Bioethics Committee (IBC)
Stem cell research, genetic testing, cloning: progress in the
life sciences is giving human beings new power to improve our health and
control the development processes of all living species. Concerns about the social,
cultural, legal and ethical implications of such progress have led to one of
the most significant debates of the past century. A new word has been coined to
encompass these concerns: bioethics[26].
The International Bioethics Committee (IBC) is a body of 36
independent experts establissed in 1993 in order to follow progress in the life
sciences and its applications to ensure the respect for human dignity and
freedom.
The main tasks of the
IBC
The IBC has the following tasks:
1. To promote reflection on the ethical and legal issues
raised by research in the life sciences and their applications.
2. To encourage the exchange of ideas and information.
3. To encourage action to heighten awareness among the
general public, specialized groups and public and private decision-makers
involved in bioethics.
4. To co-operate with the international governmental and
non-governmental organizations concerned by the issues raised in the field of
bioethics as well as with the national and regional bioethics committees and
similar bodies.
5. To contribute to the dissemination of the principles set
out in the UNESCO Declarations in the field of bioethics, and to the further
examination of issues raised by their applications and by the evolution of the
technologies in question.
Forms of Bioethics
Committees
Bioethics Committees can have four forms with different
functions:
1. Policy-making and/or Advisory Committee
2. Health-Professional Association Committee
3. Health Care/ Hospital Ethics Committee
4. Research Ethics Committee
3. International regulation of the
bioethics
The
bioethics is regulated at international
level as well as regional level. At international level the regulation of
bioethics issues are merely soft (soft law) as there are not binding documents
in this area. They include different resolutions, declarations and codes. They
are
1.
Nuremberg Code of 1947 (WMA)
2. Declaration of Helsinki (1964) (WMA)
3. Universal Declaration on the Human Genome and Human
Rights 1997
4. International Declaration on Human Genetic Data 2003
5. Universal Declaration on Bioethics and Human Rights 2005
6. United Nations Declaration on Human Cloning 2005
The main reason for what the International Community is not able
to draft and adopt internationally binding document is that issues of the
bioethics as it was mentioned are very controversial. In this way there is not
chance to become to an agreement at international level.
Bioethics issues are also deal at regional level. The main region organization concerning in this
ground is the Council of Europe. Its scope of operation is opposite to the
Universal system. The Europeans instruments in the ground of bioethics are
binding as because they are convention and have force of law for country
parties. The main document of regulation of the bioethics and human rights are:
1. Convention for the protection of Human Rights and Dignity
of the Human Being with regard to the Application of Biology and Medicine:
Convention on Human Rights and Biomedicine (Oviedo, 4.IV.1997)
2. Additional Protocol to the Convention for the Protection
of Human Rights and
Dignity of the Human Being with regard to the Application of
Biology and
Medicine, on the Prohibition of Cloning Human Beings (Paris,
12.I.1998)
3. Additional Protocol to the Convention on Human Rights and
Biomedicine
concerning Transplantation of Organs and Tissues of Human
Origin (Strasbourg, 24.I.2002)
4. Additional Protocol to the Convention on Human Rights and
Biomedicine,
concerning Biomedical Research Strasbourg, (25.I.2005)
5. Additional Protocol to the Convention on Human Rights and
Biomedicine,
concerning Genetic Testing for Health Purposes *
Strasbourg, 27.XI.2008
The
Nuremberg Code of 1947 and Human Rights
Since ancient times, the way
experiments are conducted in biologic and medical sciences always provoked many
reactions because of lack of ethics principles. In the contemporary time, the
horrible discover of medical researches made by Nazi physicians during the
World War Two (WWT) required attention of the whole international community and
establishment of international Code of conduct known as Nuremberg Code of 1947
by World Medical Association (WMA).
Nazi doctors were involved in
experimental scandal on prisoners. They conducted experiments on genetics basis
in order to determine the superior race[27]. To know how long human being is able
to survive from the cold prisoners were placed into ice cold vat to determine
the lowest possible temperature in which a human could survive[28]. More others horrible practices were
conducted exceeding the human understanding.
For example, one of the most activist
physicians in this inhuman practice was Doctor Joseph Mengele namely “Angel of
death”. He was distinguished particularly for his experiments on twins[29]. The experiments were conducted
generally for three purposes: first for Medico-military research, second for
Miscellaneous, Ad hoc experiments and third for racially Motivated Experiment[30].
Therefore
most of these physicians were convicted by the Special Tribunal Court of
Nuremberg of 1947, who worked on the basic of the principles of this Code.
These principles became main guidelines of WMA. They consist on ten principles
which are:
1. The voluntary consent of the human
subject is absolutely essential. This means that the person involved should
have legal capacity to give consent; should be so situated as to be able to
exercise the free power of choice, without the intervention of any element of
force, fraud, deceit, duress, overreaching, or other ulterior form of
constraint or coercion; and should have sufficient knowledge and comprehension
of the element of the subject matter involved as to enable him to make an understanding
and enlightened decision. This latter element requires that before the
acceptance of an affirmative decision by the experimental subject there should
be made known to him the nature, duration, and the purpose of the experiment;
the methods and means by which it is to be conducted; all inconveniences and
hazards reasonably to be expected; and the effects upon his health or person
which may possibly come from his participation in the experiment. The duty and
responsibility for ascertaining the quality of the consent rests upon each
individual who initiates, directs, or engages in the experiment. It is a
personal duty and responsibility which may not be delegated to another with
impunity.
2. The experiment should be such as to
yield fruitful results for the good of the society, unprocurable by other
methods or means of study, and not random and unnecessary in nature.
3. The experiment should be so designed
and based on the result of animal experimentation and knowledge of the natural
history of the disease or other problem under study that the anticipated
results justify the performance of the experiment.
4. The experiment should be so
conducted as to avoid all unnecessary physical and mental suffering and injury.
5. No experiment should be conducted
where there is a prior reason to believe that death or disabling injury will
occur: except, perhaps, in those experiments where the experimental physician
also serve as subject.
6. The degree of risk to be taken
should never exceed that determined by the humanitarian importance of the
problem to be solved by the experiment.
7. Proper preparation should be made
and adequate facilities proved to protect the experimental subject against even
remote possibility of injury, disability or death.
8. The experiment should be conducted
only by scientifically qualified person. The highest degree of skill and care
should be required through all stages of the experiment of those who conduct or
engage in the experiment.
9. During the course of the experiment
the human subject should be at liberty to bring the experiment to an end if he
has reached the physical or mental state where continuation of the experiment
seems to him to be impossible.
10. During the course of the experiment
the scientist in charge must be prepared to terminate the experiment at any
stage, if he has probable cause to believe, in the exercise of the good faith,
superior skill and careful judgment require d of him, that a continuation of
the experiment is likely to result in injury, disability or death to the
experimental subject[31].
The greatest
of the success of the Nuremberg Code is not only in the fields of medical
research as concern the obligations of the physician and the social utility of
the research, but it is a big achievement in human rights protection. Because
the freedom of expression of the experiment subject (patient) is capital
(principles 1 and 9). Also his security must be guarantied as well at any stage
of experiment.
Thus, the
horrible Nazis practices once included no only massive killing of peoples
during the WWT by militaries attacks, but also inhuman practices that required
legal regulations of medical experiments and practices confined in the
Nuremberg Code of 1947.
Bioethics as
ethic problems arise from the development of biology and medical researches
continue to many controversial discourses regardless of the evolution of the
human society.
There are political, religious,
historic approaches to these discourses. These controversies appeared many
times are in contradiction to the new secular bioethics that considers human
being, his freedom and rights as fundamentals.
Therefore in
our mind, all kinds of limitations or depravations of fundamental human rights
on behalf of these are no only absurd and dated but also unacceptable in regard to
fundamental rights recognized by International Bill of Rights and related to it
others international agreement in the human rights ground.
Nuremberg
Code again showed us that human right to freedom of choice (consent of the
experimental subject) is inviolable and must be respected regardless to
bioethics belonging.
This
principles are absolutely important when talking about current understanding of
the human rights to his own body and that may be able to help in different
choices made by everyone, particularly in the medical issues. Thus, somatic
rights of every person must be guarantied.
(For more detail read other aforesaid instruments above)
IV
Somatic Human Rights
Concept
Somatic human rights are controversial
ideas between those who consider divine character of human being, particularly
the perception of human body as God’s property. This conception based on
Islamic, Christian, Jewish bioethics is opposite to secular bioethics which
proclaims the freedom of each human being on his own body.
The adjective “Somatic” is derivate
from the word “somatos” at Greek “body”. Its adjective “somaticos” means
pertaining to the body.
In Anatomy and Zoology “somatic”
pertaining to the body wall of an animal, Cell Biology and affecting the somatic
cells, as distinguished from the germ cells[32].
1. Types of Rights
By type of rights we mean rights
recognized to everyone accordingly with International human rights Conventions.
In spite of that these rights entitled to each people their enjoyment are very
controversial. These problems occurred because o first of all the different
existing conception of bioethics and secondly according to different
interpretations of international human rights law.
a. Rights to die / Euthanasia
The right to die is widely interpreted
as right for everyone to decide for his own life as well as recognized by
Universal Declaration on human rights: “everyone has the rights to life,
liberty and security of his person”[33]. It is seen as a fundamental freedom
and for this reason all kind of interferences seemed as a violation of the
right to privacy and for this purpose saw as a Civil right[34].
Talking about
the right to die, attorney Robert L. Risley in his book “Death with dignity” points out that
in general” court cases clearly established the right to bodily integrity, confirming
the basic right of self-determination include the right to die, and that
overrides the States duty to preserve life”.
For the supporters of the right to die
the right to life entails the right to die and related to it the freedom of
choice entitled to every person as recognized by the article 3 of the Universal
Declaration of human rights. This position is based on the concept known as “self-ownership”
or “the sovereignty of the individual” developed by some philosophers such
William Rees-Mogg, James Dale Davidson, L. Susan Brown, and others via
“anarchist” and “liberal” theories.
The right to die has interpreted by
many jurisdictions at national level. The U.S. Supreme Court addressed the
question of whether the U.S. Constitution protects the right to die in 1990 in
the case of Cruzan v. Missouri, 497 U.S.
261. In the words of Time magazine,
in the case the U.S. the U.S. Supreme Court “declared for the first time that
there is indeed a right to die” (July 9, 1990, p. 59)[36]. The right to die is recognized as
federal constitutional right. Thus the right to die entails the right to
suicide.
The right to die has several meanings
including rights to suicide and euthanasia.
The voluntary euthanasia consists on
rights to the person at stage of a terminal illness to commit a suicide or to
be assisted to die. They include passive and active euthanasia. Active
euthanasia occurs, when person is medically assisted to die and passive
euthanasia when the patient at the end of illness medically is not supply in
order to let him die.
The concept of the “self-ownership”
based on secular bioethics. Certain religions like Hinduism and Buddhism accept
or agree with the rights to suicide in some cases (for more see Buddhist
concept on bioethics).
The voluntary suicide (medically
non-assisted) is one’s decision to put end to own life. This kind of suicide is
particularly criticized as cruel practice and regard as incapacity of a person
to overcome some life difficulties. These peoples concern those regarded as
weak persons according to social views, and need psychological help in order to
overcome difficulties. These difficulties may relate to the family, problem at
work, or any social difficulties. Any way this kind of suicide may regard as
exercise of the right to life because never trial someone or put him into jail
just because he attempted to his own life. The society only can propose to that
person a psychological help for his social adaptation.
Addict cases
b) Right to abortion
At the same time discourses about
abortion is considered as suicide (voluntary or involuntary suicide) continuing
to run.
Without taking part to different
religious discourses about abortion, the opponents to abortion consider it as a
murder or crime. The idea is that there is no choice of the fetus as future
human being here. For this reason, it is inacceptable to put end to the
pregnancy according to the cons.
But the supporters of abortion at
first think that the right to give up a baby is individual right of each woman.
This freedom of choice cannot be limited. And secondly, one of the main
arguments is that the right to abortion compulsory connected to the right to
health. This position is confirmed by many decisions of the European court on
human rights. Every woman has right to decide about her pregnancy particularly
when that affects her health or life. Therefore it is also argued that a
woman’s right to decide matters relating to her own body form a part of right
to privacy, right to autonomy, right to liberty, right to physical integrity,
and right to decide a number and spacing of one’s children[37] as guaranteed by International Bill
of rights.
The World Health Organization defines
“health” as a state of complete physical, mental, and social well-being and not
merely the absence of disease or infirmity[38]. International guaranty of right to
health (abortion) is invoked in as already mentioned, Universal Declaration of
human rights that affirms that “everyone has the right to a standard of living
adequate for the health and well-being of himself, and of his family, including
food, clothing, housing, medical care, and necessary social service”. The same
provisions are confirmed in the International Covenant on Economic, Social and
Cultural rights (art. 12 (1)), International Convention on the Elimination of
Forms of Racial Discrimination (art. 5 (e) (iv)), International Convention on
the Rights of the Child (art. 24), Convention on the rights of persons with
disabilities (art. 25), Convention on the Elimination of All forms of
Discrimination against Women and others.
The right to health contains both
freedoms and entitlements. And freedoms include the rights to control one’s
health and body, including sexual and reproductive freedom, and the right to be
free from interference, such as the right to be free from torture,
non-consensual medical treatment and experimentation[39].
Nonetheless the regulation of matters
of pregnancy and abortion are differently regulated at national levels.
Abortion is categorically prohibited in some countries. For example, in
approximately 70 countries, abortion is not legally permitted where necessary to
preserve the physical health of the woman[40].
The restriction of abortion provokes risk of
insecurity and death of hundreds women through the world. Thus, according to
World Health Organization, nearly 20 million unsafe abortions took place
globally in the year 2003 and 98 % of them took place in developing
countries with restrictive abortion laws. As a result of this high global rate
of unsafe abortion, every year approximately 70 000 women die and close to five million women suffer
from temporary or permanent disability[41].
The question between safety of the
abortion and legality is also proved. Romania provides a clear example of the
link between legality and safety. From 1957 to 1966, access to abortion was
legal and widespread. In 1960, the abortion mortality ratio was 20 per 100 000
live birth. In 1966, access to abortion was legally restricted and by 1989
mortality ratios had risen to 148 death per 100 000 live births with abortion
accounting for 87 % of the deaths. In 1989, the law was once again changed to
provide for easier and safer access to abortion services. Within a year the
mortality ratio fell by more than half and by 2002 mortality from unsafe was as
low as nine per 100 000 live births[42].
The right to life and the right to
health are two principle arguments that founded the right to abortion. Every
person entitled the right to decide what is better for his life and for this
reason has the rights to decide to abort particularly when this affects the
health of the woman. The right to abortion must not be restricted. For this
reason the laws which restrict access to abortion services violate the
international rights to health[43]. This kind of restrictions on
abortion also constitutes a form of gender-based discrimination[44], as the abortion issues are typically
womanly matter.
(Case)
c) Sexual Right
The sexual
right implies the right for everyone freely to have sexual relationship with
others person by his consent. Sexual right as right to abortion is guaranteed
to each person by national as international law. According to the International
Declaration on Human Rights, men and women of full age, without any limitation
due to race, nationality or religion, has have the right to marry and to found
a family[45]. This provision is confirmed by the
International Covenant of Economic, Social and Cultural Rights[46].
These
provisions hereby include sexual right that entitled to everyone. Nobody can
restrict it, exception people who does not reach full age of 18 years. The
sexual right involves no only free relationship with someone but also the right
to choose freely the partner. Therefore all interferences in one’s partner’s choice (homosexual or
heterosexual) constitute no only violation of the sexual right, but also the
right to privacy.
d) Reproductive Right
Rights to
abortion, sexual rights and reproductive right are interconnected. The reproductive right is one’s rights to decide to have or not
children by enjoying sexual right. The reproductive right entitled to each
person. People are endowed all legal measures to enjoy their reproductive
rights as recognized by the article 10 of universal Declaration of human rights
and the article 12 of Covenant of Economic, Social and Cultural Rights.
Every family
has the right to decide how many children they want and how many the can adopt.
Any restriction cannot be done regard to homosexual or heterosexual family.
Everyone has right to enjoy the happiness to found a family as to be parent.
Reproductive
right also poses the problem of the surrogacy for the infertile men, women or
families. They entitled also the right to enjoy the happiness to be parent.
Therefore, they can be helped by other persons who are able to enfant if these
peoples are consents. The decision to become surrogate mother is individual rights
implying the right to health and the concept of the bodily “ownership”. All kind of restriction
to freedom to enjoyment is a violation to the fundamental human rights.
e) Right to Change sex
The right to change sex is governing
by the conception of “self-ownership” recognized as fundamental human right.
Everyone is free to choose how his want to look like.
This right is the result of the
development of the medical science. International Covenant on Economic, Social
and Cultural rights recognizes the right of everyone to enjoy the benefits of
the scientific progress and its applications[47]. That is the fact that human rights
are no steady. The evolution of the society rises now rights that need to be
take into consideration.
In spite of
the social worldview, the right to change sex in the contemporary time is very
successful at some part of the world, particularly in the societies where
principle of equality between peoples are recognized and guaranteed. That is
the case of Thailand where existed special organization namely “Lady Boys”. In the Thailand the
Buddhist principles of freedom is more tolerable than other regions in the
world. That situation promotes the fully enjoyment of the right to everyone to
change his sex.
The right to
change sex also includes the right to health and the freedom for every person
to decide about his own health.
f) Right to own organs and tissues
“The self-ownership” includes on only
the right to health but also the right to own organ and tissues. The right to
own organs and tissues is one’s right to be Donor or not. The right to own
organs and tissues entails three main rights: the right to entrust own organs
and tissues to medical research, the right to be donor to someone freely and
the right to be donor for commerce purpose.
The first
case occurs when someone at live as after death decides to summit his body or a
part of it to the science for experiment. The practice widely spread out
through the world.
The second
situation available when one’s freely decides to give some part of his body at life or
after the death to another. That may be blood, some tissues, organs, sperms. In
this way the surrogacy is fully justified as practiced and must be acceptable.
The third one
consists to sell one’s
own organ or tissues for commerce purpose. This practice sometimes is harshly
criticize, because of the unwilling of the seller. It means the lack of the
freedom of choice. They generally do so because they are poor. The issue on
transplantation is widely regulated at european level by the European
Convention on the biomedicine.
e) Right to narcotics and psychotropic
substances (drugs)
International cooperation in the field
of fighting against narcotics and psychotropic substances opposes the rights to
each person to these substances. The matter to free access to drugs continues
to entertain chronicles. The supporters of drugs regulation think that the
using of drugs threatens no only the person who uses them but the all society.
The using of drugs as they think develop crimes, affect people’s health etc.
The argument that drugs affect human health
and have some negative influences on the social security is rejected by the
supporters of “self-sovereignty” of freedom.
Even peoples are now more and more in
favor of the free access to drugs. Many States such Canada, Spain, Switzerland
and others already followed these steps establishing special centers for the
users. This practice has many advantages than prohibition of drugs using as at
first it allows to know who uses it, secondly the possibility to control the
quantity, thirdly the possibility to know the origin of drugs, fourth the
avoiding illnesses such HIV/AIDS etc. For these reasons and others many
specialists think that the liberalization of selling of drugs will resolve more
problems than they create[48].
Production, manufacture, traffic and using
of drugs are regulated and in the frame of United Nations conventions. There
are two main Conventions of UN that regulate the drugs issues. The first
Convention concerns the Single Convention on Narcotic Drugs of 1961 which was
modified in 1971, namely Convention on Psychotropic Substances And then the
United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances of 1988. These conventions provide classification of
drugs in accordance with their danger on human health in the case of their
abuse and in accordance to their therapeutic worth.
The drugs are classified in schedules
according to their danger. In spite of that some drugs may particularly be
danger for human being. These conventions generally do not prohibit their
consumption[49]. They only apply to prevent illicit
cultivation, production, and manufacture of, and illicit trafficking in and
use, of drugs.
To emphasize the provisions of the
aforesaid conventions were established special Organs. There are two main Organs
which are the Commission on narcotic drugs established in 1948 within the
Economic and Social Council of UN and the International Narcotic Control Board
(INCB) of 1968 in accordance of the Single Convention on Narcotic Drugs.
European countries are bounded by UN
Conventions in the ground of fighting against drugs. In the frame of the
European Union the using of drug is generally prohibited. The countries inside
UE are divided in three groups such those countries:
1.
Countries completely prohibit consumption of drugs and it may regard as a
crime. These countries include France, Sweden, Greece, Finland, and Cyprus. In
these countries the legislation may provide imprisonment as sentence.
2.
Countries where consumption may qualify as administrative infringement:
Portugal, Spain, Luxemburg, Bulgaria, Estonia, Latvia, and Lithuania.
3.
Countries where legislation does not prohibit the using but where detention of
sufficient quantity may consider as infringement: Belgium, Denmark, Holland,
Italy, Germany, Austria, England, Ireland, Malta, Hungary, Czech-Republic,
Poland, Slovakia, Slovenia and Romania[50].
Thus, drug
regulations have controversial discourse about the exercising freedom and uses
of drugs. Anyway it is important to underline that the existing international
Conventions as mentioned do not explicitly condemn the consumption of drug but
regulate the production, manufacture, illicit traffic and abuse use. In this
scope all kind of restriction may occur only in the purpose to the public order
and public heath without infringement to individual freedom.
f) Right to Cloning
The cloning matter belongs to
biotechnology issues is developed in the unit titled “Human Rights and
Biotechnology”. Thus, in this point we just analyze ethics issues related to
enjoyment of rights to cloning.
According to the definition given by
the International Convention on Biological Diversity of United Nations of 1992,
“Biotechnology means any technological application that use biological systems,
living organisms, or derivatives thereof, to make or modify products or
processes for specific use[51]”.
It is important to underline that,
biotechnology widely includes the pure biological sciences genetics,
microbiology, animal cell culture, molecular biology, biochemistry, embryology,
cell biology etc.
The biotechnology implies therapeutic
and reproductive cloning engineering. The most important is the possibility for
this engineering to product human being and others organs and tissues to
transplantations and others medical needs. This approach as other bioethics
issues is very controversial.
To solve the problems related to
cloning human being was established in 2001 the Committee ad hoc on human
cloning in order to make propositions to UN General Assembly[52]. At the end of the work of the
Committee ad-hoc, the member agreed with idea that human cloning including
human embryonic must be prohibited by international ban[53]. People argue against human cloning
because human dignity must be protected.
The human rights issues through such prohibition
consist on the restriction of human freedoms that are considered as
fundamentals. For certain peoples this restriction infringes existing human
rights agreements.
The Universal Declaration on human
rights (UDHR) guarantees the rights to found a family and protect the family as
a sphere of privacy[54].
The right to decide freely and
responsibly on the number of and spacing between children is also recognized by
the International Convention on the Elimination of all Forms of Discriminations
against Women of 1979[55].
The freedom of scientific research and
uses of the benefits of scientific progresses are also guaranteed by
International Covenant on Economic, Social, and Cultural rights of 1966[56] and other many international
documents that protected individual, freedom, rights to health etc.
For us the problem must have another
regulation taking in account the matters that can arise from the cloning. These
problems as concerned related to advantages and damages that human cloning can
cause respectively.
1. About the advantages it is
important to underline the benefits for infertile men, women, and couples. As
human being they are entitled all rights to enjoy the progress of scientific
progresses, particularly the medicine. The right to enjoy happiness as parent
must be guaranteed if human cloning can provide them this happiness.
2. The another problem is the benefits
of cloning by avoiding some genetic diseases that not exists any solution to
care.
3. The human cloning can help to avoid
mother mortality as we already mentioned in the part “reproductive right”. That
can be the respond to the thousands death that occur during childbirth.
4. The human cloning can be necessary
to avoid some sexual transmissible diseases as HIV/AIDS and others.
5. The human cloning can be a solution
to violence in the family, example for those who want to live alone but having
right to child.
The danger to human cloning acceptable
is more procedural than ethical. Because can rises some problem that regulation
must be out of control.
1. The cloning technic by medical
companies is more supplied by private pharmaceutical companies than public
sectors. There arise the problems of control and limit on cloning engineering.
2. The other matter that can occur is
the accessibility of this technology in practice. As we now it is very
expensive process that can be accessible only for rich country. In this way the
developed countries should be once marginalized.
3. A part from technology access,
there also problem to access to the result of cloning technic that will be also
expensive and accessible only rich peoples.
So the advantages and disadvantages
are multiple. The enjoyment of freedoms can be restricted only in the cases
where the enjoyment infringes freedoms of other peoples, but not on the
individual or social feeling. And in the case the human embryonic cloning does
not infringe freedoms of others. Human embryonic cloning is not compulsory for
everyone but for those who should be in need.
At the end of ours analyzes on human
rights and bioethics we can conclude that the scientific evolution is a real
fact. This evolution involves all the spheres of human life. The evolution of
the science implies also enjoyment of human rights, human freedoms and dignity.
Yet, the exercise or enjoyment of the
scientific results is appreciated differently because of social, political,
economical, cultural views of peoples. This worldview divides the contemporary
world into two camps. The first group as concerned includes the secular view of
the world and share of the benefits of scientific progress without any
restriction to enjoyment of the human freedoms. The second group implies the
traditional conception based on the fear of the future.
To deal with this opposition, social
dialog and agreements are necessary, but not enough. Because the evolution of
the society implies news possibilities and new rights that can be suddenly
accepted by others members of the society. Fifty years ago it was impossible to
talk about rights of LGBT peoples. But now countries start recognize them and
are taking measure for their protection and enjoyment. Therefore we think that
the time is the best remedy to address bioethics issues.
[3] UN Document. A/RES/2625 (XXV): Declaration on Principles
of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations at 24 of October
1970.
[7] Lolas, F. (2008). Bioethics and animal research: A
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[8] Goldim, J. R. (2009). Revisiting the beginning of
bioethics: The contributions of Fritz Jahr (1927). Perspect Biol Med, Sum,
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[10] Megan-Jane Johnstone, Bioethics, Cultural Differences and
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[11] Tristram Engelhardt, Christian Bioethics after
Christendom: Living in a Secular Fundamentalist Policy and Culture. Oxford
Journals Humanities & Medicine
Christian Bioethics Volume 17, Issue 1Pp. 64-95.
[13] Tristram Engelhardt, Christian Bioethics after
Christendom: Living in a Secular Fundamentalist Policy and Culture. Oxford Journals Humanities & Medicine Christian Bioethics Volume 17, Issue 1Pp.
64-95.
[15] God, Life, and the Cosmos: Christian and Islamic
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Islamic studies (January 2006) 17 (1): 68-71.
[17] Jewish Bioethics by Mark Levin and Ira Birnbaum. Journal
of medicine and philosophy 2000, Vo. 25, 4,pp. 469-484.
[19] Noam J. Zohar, Human action and God’s Will: A problem of
Consistency In Jewish Bioethics. The Journal of Medicine and Philosophy, Bar
LLan University, Ramat Gan, Israel. 20: 387-402, 1995
[21] Pinit Ratanakul. Bioethics in Thailand: The Struggle for
Buddhist Solutions. The journal of Medicine and Philosophy, Research Center of
Southeast Asian Culture, 13 (1988), 301-312.
[25] Megan-Jane Johnstone, Bioethics, Cultural Differences and
the Problem of Moral Disagreement in End-Of-Life Care: A Terror Management
Theory. The Journal of
Medicine and Philosophy, April 4, 2012, 37: 181-200.
[26]
http://www.unesco.org/new/en/social-and-human-sciences/themes/bioethics/about-bioethics/
[27] Mustafa Khidir
Mustafa Elnimeiri, Nuremberg Code: A Landmark document on medical
research ethics, Sudanese Journal of Public Health: April 2008, Vol.3 (2).
[31] Ibid.
For more
information see: The Nuremberg Code (1947) In: Mitscherlich A, Mielke F. Doctor
of infamy: The story of the Nazi medical crimes. New York: Schuman, 1949: Also
available online from http:/www.cirp.org/library/ethics/nuremberg
[37] Ronli Sifris, Restrictive Regulation of Abortion and the
Right to Health. Medical Law Review, 18, Spring 2010, pp 185-212.
[53] Report of the Ad-Hoc Committee on an international
Convention against the reproductive cloning of human beings, 25 February to 1
March 2002, General Assembly Official records, 57th Session,
Supplement number: 51 (A/57/51, Paragraph 11-13).
