BIOETHICS, CLONING AND HUMAN RIGHTS
BREAKING NEW GROUND INTO A PRECARIOUS TERRITORY
(Research Proposal by Victor Tsilonis, 2002)
The unprecedented evolution of science during the last century made feasible, inter alia, the mapping of DNA and the «creative» human intervention in its core structure. The vigorous scientific progress, revealing a dynamic similar to the impetus of the tidal waves following an earthquake, provoked the emergence of bioethics as an interdisciplinary science which would aid us to perceive how the novel, thorny, ethical and legal problems concerning human rights and biotechnology ought to be coped with, where the «final frontiers» should be demarcated and towards which direction scientific research ought to be focused on. Bioethics constitute an interdisciplinary scientific field, since they are interrelated with genetics, medicine, law, philosophy, sociology and theology and this is a primal factor which augments dramatically the difficulty for their definition and delimitation. The relatively certain prognosis that in the next decades the momentum of scientific discoveries will be even more increased impels us to meticulously analyze the much disputed evolving issues and suggest proper solutions and strategies towards the confrontation of the problems arising out of the righteous or not usage of our current knowledge on genetics. Eventually, it must be clearly stated upon what criteria one usage of the genetic mechanic will be deemed as righteous and ethical, while another as not righteous, unethical and in violation of the prescribed human rights; under which context and within what limits should we protect human rights against the unbridled rush of biotechnology.
Genetics, the legal nature of genetic material
and the right of personality
A main issue is regarding the legal nature of the cryo-conserved sperm and whether its wrongful destruction could be deemed either as inflicting physical harm, as a violation of the right of ownership or as an infringement of the right of personality. A landmark decision in Germany in 1993 (BGH 09/11/1993- VI ZR 62/93, NJW 1994,127) endorsed the view that the wrongful destruction of the cryo-conserved sperm of the donor is equated with physical harm. This view was not in harmony with the theoretical position traditionally held that the organs of the body which were permanently severed from it were not considered part of the body anymore but independent things. The Supreme German Court changed its former legal position because it took into consideration, amongst other factors, that according to the achievements of the modern medicine an organ or a tissue of the body can be separated from it but without losing its functional bond with the body itself, when this has occurred for the fulfillment of a pre-defined purpose, such as acquiring descendants. However, and beyond this point, the research intends to analyze whether this tort can be characterized alternatively as an unlawful encroachment of people’s personality and whether the answer to the above question can be eventually given by a pragmatic approach, i.e. when the donor is in position to provide the tissue or the sperm again. Furthermore the research will aim at proposing the personality’s protective boundaries and say under what circumstances -if any- the violation of personality rights due to the destruction of genetic material should ever be excluded. Overall, the primary aim will be to define precisely the legal nature of genetic material (whether genetic material is a thing, part of the body or part of the personality) and address the most suitable legal remedies accordingly.
Human genome and its alteration
Experiments conducted recently concerning the successful creation of an animal with a goat’s head and a sheep’s body, reminded us once again that the creation of a human- like creature with a human mind and the vision of an owl, the swiftness of a tiger, the might of an ox, the smell of a bloodhound and the hearing of a wolf is not distant at all. Under the context of the constant, uncontrollable advances of science it must be examined whether this future, «divine» intervention will constitute a flagrant trespass of the human rights or if it will simply depict a beginning of a new era where humans will be de facto compelled to take control of their evolution not only by accelerating and optimizing the changes which inevitably would be brought after hundred thousands of years according to the Darwin’s theory on the evolution of species, but also by modifying the human genome wisely, in order to become able to vanquish present and future perils (e.g. chemical pollution, radioactivity, new or already existed illnesses, viruses etc.). After all, we should not be oblivious of the fact that what today is considered immoral and unethical might tomorrow be characterised as moral and ethical.
It is important to note that despite the fact that the European Convention on Human Rights and Biomedicine of Oviedo (Art. 11 to 14) regulates the instances where intervention to human genome shall be permitted does not offer a legal definition of what a human genome is. The research purports to offer assistance to that end; it will examine the advantages and the disadvantages of the creation of a proper legal definition concerning human genome and, if it finally considers it appropriate, will attempt to present one. In other words, the research will examine if the definition on human genome given only by science so far is indeed the most suitable for legal purposes too or if the forming of another, different, legal definition is essential.
Therapeutic and Reproductive Cloning
Despite the fact that amongst the scientists there is an overwhelming majority that human cloning for reproductive purposes should be strictly banned, the bare minority who holds an opposite view threatens to alter irrevocably the world as we currently know it. The Human Fertilisation and Embryology Act of 1990 in conjunction with the Human Reproductive Cloning Act of 2001 forbid human reproductive cloning in the United Kingdom, while other national legislations expressly or impliedly state the same. None the less, there is still grave danger that the scientists opposed to this view may decide to make experiments in international waters and thus override the national protective legal barriers.
On the other hand, therapeutic cloning is highly controversial as experiments must be requisitely conducted on early-stage embryos, which are being «discarded» after their mining for stem cells, a procedure which must necessarily take place within 13 days. It is forcefully endorsed that this inescapable action constitutes a grave impingement on human rights and more specifically an affront to the sanctity of human life. However, it is being vehemently advocated that this procedure might not be necessary after a few years, since it is hoped that the scientific progress will find out another way and overcome this serious indeed ethical reef.
The research will seek to answer whether therapeutic cloning is the sole path available for the cure of degenerative diseases, like Parkinson and Alzheimer, for impeccable transplantations and for the successful treatment of severe cases of stroke, spinal cord injury, diabetes, and leukemia; in other words, the study aspires to examine whether therapeutic cloning is an inevitable course of action for mankind or not, because the answer to the above question will be critical before positively stating that there is a breach of human rights or not.
Beyond the shadow of any doubt, the serious ethical objections raised by several eminent persons and groups and their utterly justifiable fears that such medical experiments, if permitted, will eventually lead to human replication should be thoroughly investigated but not render us to contemptuously ignore the advantages of this medical breakthrough. Never the less the research will also attempt to identify whether the enactment merely of Codes of Practice and Conventions, like the European Convention of Oviedo (which has been signed by thirty States so far but not by the United Kingdom) and the Unesco’s Universal Declaration on Human Genome and Human Rights can provide a secure legal framework or if additionally other, more stringent legal safeguards are needed in order the «prophecies of evil» to be refuted.
Latest Developments
The very recent decision of the Human Fertilisation and Embryology Authority (HFEA), which permitted a married couple with a child suffering from an incurable disease to give birth to another child with an identical genetic material, shall be thoroughly analysed. The fact that the Authority needed 18 months to decide and that the officials responsible unequivocally stated that their decision is not intended to create a precedent, although it seems that it inevitably will, demonstrates categorically that the issue is ambivalent and problematic. Indisputably, the above referred decision seems to be an example of «reproductive cloning for therapeutic purposes». Consequently, the research will attempt to shed light on this area and finally stress under which circumstances such an event should (if ever) be allowed to happen again.
Therefore, the project will eventually be centered on developing a coherent conceptual framework for the particular area of law and offering a critique of the substantive rules. It is hoped that it will be of interest to a broad and diverse spectrum of people such as scholars, scientists of medicine, lawyers, judges, lawmakers and that its conclusions will be taken into consideration before firm decisions on unclear, ambivalent issues tightly linked to biotechnology being reached.
Because of the nature of the above referred topic the study will be based on a broad literature research; apart from legal texts and articles, the scientific, theological and philosophical approaches of this heated issue should also be examined. Cooperation with the relevant Scientific and Human Research Ethics Committees, the relevant Parliamentary Committee, the National Health Medical Research Council, the Human Genetic Advisory Commission (HGAC), the Human Fertilisation and Embryology Authority (HFEA) and interviews taken by well-respected scientists of the field will cover spherically the scope of the study.
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