Presentation Transcript

1. HealthLawAndBioethicsTheHumanEmbryo’s Status

   Ana Anjo 003038 2013
2. 1. Concept of the human embryo – perspectives 2. Uses of The Human Embryo and issues 3. International and european law 4. Portuguese law 5. Doctrine and jurisprudence 6. Comparative law
3. 1. Conceptofthehumanembryo 1.1. Ontological concept: The human embryo is a complex object given the scientific development which creates new realities and problems The concept of “person” is achieved by philosophy whereas biology looks only at the scientific aspect There are several theories to explain the embryo and a conclusion is almost impossible (is it a group of cells, tissue, organs or human?) Ethic committees use metaphysic terms: the embryo as a potential person
4. Biology does not detect the evolution of the identity from every angle Although there isn’t a manifestation of the person “in utero”, there is a person in development Religion – believes in human life created since conception (40 days for Hebrews, 121º days for Muslims)
5. Jean-François Mattéi: deserving of respect and protection or is it just a morphologic expression of life that begins with fecundation and doesn’t deserve status Peter Singer: distinguishes concept of person and human being Questions: when does life start? Is there a difference between zygote and human? What is to have life and the potencial to have it? If zygote is not a person can it be manipulated?
6. 1.2. Biological concept There are several scientific concepts to describe natural events of conception Luís Archer – fertilizing the egg and fusing it with sperm creates the zygote which originates the human embryo. Then, it is transferred to the uterus for nidation and a fetus is formed. Commission for the Study of Bioethical Issues: zygote is the organism in development after fecundation, embryo occurs after the second and eight week after fecundation and fetus after the ninth week
7. 1.3. Concept of person and embryo Should the embryo be respected as a person for the beginning or progressively? Peter singer – the person is a rational and self conscious being which means the fetus shouldn’t have more value than an animal (eugenics critic) ComitéConsulltatif National d’Ethique– with fecundation there is a living human organism in development that should be protected as a human being in potential (prohibits scientific investigation) ConselhoNacional de ÉticaparaCiências da Vida – the embryo begins human life deserving of dignity as it will never create anything else but a human being
8. 2. Uses of The Human Embryo and issues There is not a single solution for the embryo’s status as philosophy isn’t an exact science and biology cannot be indifferent to moral values Proposed solution: biology should function as an exact science and philosophy aids in profound ethical matters The legislator can choose to: create human status ( and create the figure of embryocide), classify as a group of cells to investigate or not to legislate at all. Laws may vary based on the concept adopted Oliveira Ascenção– the embryo is not a thing and is not a property. As the highest point of life in formation it should be protected with a specific status Issues: abortion, cloning, stem cell research, scientific investigation or experimentation in the embryo, medically assisted reproduction, prenatal diagnosis, surplus embryos
9. 3. International and european law Convençãopara a Protecção dos Direitos do Homem e da Dignidade do SerHumano face àsAplicações da Biologia e da Medicina (Oviedo, 1997) – human being must prevail over society or science, principle of consent, no discrimination on genetic basis, no genetic manipulation (except for therapeutic reasons), no sex selection, adequate protection for in vitro embryo research (when legal), prohibits embryo creation for scientific investigation Daniel Serrão– proposes a protocol to the convention to protect embryo and fetus from investigations for scientific purposes although there is no consensus. Proportionalists – embryo is a form of life without autonomy Essentialists – embryo carries genetic heritage to be protected
10. RECOMMENDATION 1046 (1986)on the use of human embryos and fetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes - right to a genetic inheritance which should not be artificially interfered with except for therapeutic purposes, clear ethical and social guidelines, future benefits must be carefully assessed Definition of the biological status of an embryo is necessary, legal position of the embryo is precarious and not yet defined by law Forbid any creation of human embryos by fertilization in vitro for the purposes of research, experimentation on living human embryos, may not be used without the consent of the parents or gamete donors, use for profit or remuneration shall not be allowed
11. European Charter Of Children’s Rights – there is life since conception and should not allow investigation unless for therapeutic purposes or for extremely useful for science Resolution 16.3.1989 – use of embryos for commercial purposes is punished, cryopreservation only for limited time with the intent to implant Universal declaration Of Human Rights – every human being is born equal and free with human dignity and right to life
12. 4. Portugal In Portugal, Law has a function of regulating society to solve conflicts but there is no law to regulate the embryo status, specifically cloning, in vitro-non implanted embryo or medically assisted reproduction. There are projects since 1987 until today without materialization (decreto 415/VII that regulates assisted procreation techniques vetoed by the President for lack of consensus) Only in 2006 a law for medically assisted procreation (Lei 32/06) was created and abortion was approved by referendum (Lei nº 16/2007) Despite that, there is a conscientious choice of not regulating the problems justified by personal freedom of the individuals
13. Constitution – protects the family and human life as a fundamental rights (24º, 36º) but nothing stated about embryos. Civil Law – concedes legal personality to whoever is born completely and with life but refuses rights or obligations to the embryo. Pereira Coelho claims legal personality begins with separation from uterus. Penal Law – art. 131º prohibits homicide and damages to human life. There are several theories to the beginning of life yet the majority defends birth begins with contractions. Before that any damage is considered abortion and after is infanticide (136º). Pre-natal conduct and diagnosis use the criteria of harmful effect. Art. 140º protects intrauterine life and the mothers considering that life starts with the nidation of the embryo in the uterus. Abortion is not a crime since 2007.
14. 5. Doctrine, jurisprudence and Legal opinions Constitutional court – intrauterine is not irrelevant but is not apt to possess right to life (justification for therapeutic, eugenic and criminal abortion). The embryo “in vitro” does not have right to life like other human beings and a supposed “right to be born” succumbs before other higher values (Acórdão 85/85 By Vital Moreira) Supreme Court – medical malpractice caused a false representation of the embryo’s health and the mother couldn’t perform an eugenic abortion. The court, based on US’s doctrine of wrongful birth, concedes the mother’s right to be compensated by damages from pregnancy and the children’s special needs although criticize compensation for birth as every life is equal and there is no right to not exist (9434/06.6TBMTS.P1.S1)
15. Doctrine in civil law – the embryo does not have rights or obligations without legal personality but can acquire rights by donation or inheritance. Theory of reduced personality, legal fiction or rights without subject Some authors do not recognize any rights to the unborn child, others think rights are acquired when born alive and Mota Pinto defends rights to unborns which will have full effect from birth
16. Doctrine in penal law – there are three positions: only formed life is protected, there is no difference between life in formation or formed and there is no legal obligation to protect both even if art. 24º CRP regards to them Life begins with natural process of contractions of the uterus in frequent and irreversible fashion to expel the fetus; material acts to induce labor; or the first act to surgically perform caesarean Justifies the extra protection of life because both mother and child are exposed to a greater danger with the intervention of third parties. Intrauterine life is protected against abortion (never negligent) but not infanticide or physical integrity. Despite some protection for the fetus there is none specific for the embryo
17. 6. ComparativeLaw Charttakenfrom: O embrião e o direito, Helena Pereira de Melo
18. Spain – Ley 35/1988 Authorizes investigation in non viable embryos Debate about what is viable, rejected for parental project, surpuls embryos France – 152-3 Code de La Santé Publique Prohibits investigation unless it benefits the embryo, is not intrusive and parents consent Now, parents both parents can consent to donate embryos for investigation Germany – Embryonenschutzgesetz (1990) Collect and transfer the number of embryos allowed by law Prohibits scientific investigation if the embryo is not implanted UK – Human Fertilization and Embryology Act (1990) Allows consent to create embryos for investigation and stem cell research in severe diseases