What Rights do People have over their Own Body?
A Discussion about Jurisprudence, Private Law,
Rational Choice and Bioethics
This article aims at exploring different
conceptions about the human body, at drawing a
general image of the topic, without being upheld by
the author’s personal opinion on the chosen matter
to approach. In order to fulfill this objective, the
author tries to construct the issue using her
skepticism in regard to the «established» scientific
positions, deconstructing and analyzing the major
already existing explanation/interpretation
Keywords: human body, private law, bioethics,
jurisprudence, abortion, euthanasia
For most common people, it is surprising that the rights they have over their own body are firmly limited by a significant number of social and legal constraints. Along with the social contract, people surrendered their natural liberties, preferring instead of these ones the socially organized State with all its advantages: order, safety, legal protection etc. Though the fundamental questions about the human nature have been discussed over and over, they continue to generate important controversies in the scientific milieu and the public sphere, separating disciplines and theorists in the field. Why do people exist? What are they? What is the human body and what is it supposed to be? Who’s entitled and in accordance with what right does one establish theoretically the proper relationship between the human body and the person, the human body and the society? The theories about the human body evolved once with the science of anatomy and medicine but this evolution keeps even today the mark of the religious conception about life in general. It happens to us to be unconsciously influenced by the education, the culture and the religion on which our milieu of evolution is based on and this influence is strong enough to act without our effective participation. Trying to cut with the corporal hexis1 is a loss of time, all the more so as we aren’t able to recognize our limits in discovering the world by means of a neutral reading grid in relation with the respective influence.
This paper2 aims at exploring different conceptions about the human body, at drawing a general image of the topic, without being upheld by the author’s personal opinion on the chosen matter to approach. In order to fulfill this objective, the author is supposed to construct the issue using his doubts and his skepticism in regard to the „established” scientific positions, deconstructing and analyzing the major already existing explanation/interpretation patterns.
The Person In Its Body – A Bidimensional Concept
The human body in the light of the juridical ethics
We begin by formulating an introductory definition of the „person”. Therefore, the first question we should answer is: What makes the difference between things and persons? Trying to tackle the juridical opposition between things and persons, Dominique Lecourt3 insisted on a particular quotation from Immanuel Kant’s Fundamental Principles of the Metaphysic of Morals: „rational beings are called persons inasmuch as their nature already marks them out as ends in themselves”. Kant transformed this idea, according to which the person is an end in itself, not a mean, into a practical imperative4. This imperative was central also to Hypocrates’s Oath. Once with Hypocrates5, our philosophical discussion concerning the human body is about to interact with the medical ethics. If society and religion requires to the individuals the respect for a given number of precise general rules regarding their social behavior, the medical practice is the one who raises the question about the juridical statute of their human body. In the absence of a clear response about limits, the medicine would remain an abusive practice (from the legal point of view). Or, we do know well that nowadays the juridical statute of the human body is in accordance with the medical ethics, in spite of any claim that one or another discipline, more or less scientific, could formulate. Also, it is worth to mention that the medical ethics interweaves successfully with the juridical philosophy in the sense that one doesn’t contradict the other.
Coming back to Hypocrates’s Oath and to the ancient medical bills, we should remind that these documents were profoundly influenced by the mythology and its heroes. Among them, Asclepios (Aesculapios in Latin), Apollo’s son, was considered the god of Medicine6. In other words, the questions that have been raised in the medical field do not have their primary source in bioethics. From the Greek myths to the various contemporary political ideologies, from the religious moral to the communist doctrine7, people’s most intimate beliefs are the ones that have massively influenced the major perspectives on medical deontology in different sequences of time.
If the classic philosophy defines the person through the dichotomy mean/ end, neglecting more or less the question of the human body, the juridical philosophy presents the latter as being dependent of the first one. From the perspective that the jurisprudence offers, one cannot talk about the person’s right over its body because both are part of a unique and complex system, without coherence in the absence of any of its two components. For a philosopher, the body and the spirit are interrelated. In the same time, he admits that the person can offer a part of one-self. But only by free will. This is the philosophical theoretical fundament having jurisprudential function for the cases that bring into light the juridical statute of the human body.
In the following chapters, we shall come back to this key-issue every time we shall initiate a discussion regarding the human body as property.
The human body - State property or private property?
The new opportunities appeared within the biological science for improving our lives (the possibility to transplant organs; the artificial procreation into a test-tube or with the participation of a carrier mother; the usage of products of human origin, such as blood, hair, nails, maternal milk, placenta, etc.; the deep-freeze of embryos; genes manipulation, etc.) constitutes new challenges for scientists and science. Jean Dausset, MURS’s8 president and Nobel-prize winner, considered that the Charter of Human Rights should be completed by the following article: „the genetic endowment of individuals, in the present state of our knowledge, should not be modified at the heredity level; the human body in all its elements, cells, tissues and organs, is priceless and cannot therefore be a source of profit”9. This particular issue, of establishing limits in the experimental and clinical procedures will, in fact, always remain a very controversial question.
The philosophical doctrine presented above10, on which the European ethical-juridical theory is based, can be partially invalidated. In this sense, Bertrand Lemennicier’s approach11, designed to explain the French case, is very useful as a general heuristic instrument. Therefore, we extract bellow some of the main points the author demonstrated.
The doctrine is based on four principles: the inviolability, the act of giving, the gratuity and the healing purpose. Firstly, in accordance with the principle of inviolability, the human body is, as we have already mentioned, unavailable and inviolable because this one and the person form a single whole. As a consequence, the human body can not constitute an object that the person - as law subject - can freely dispose of. Secondly, in spite of the fact that it is forbidden to alienate parts of the body, this one being protected by the principle of inviolability, it remains the possibility to donate such a part. Then, the agreement constitutes an essential concept for the second principle. The third one states that in order to be lawful and to exclude any susceptibility of financial or commercial aspect, the donation must be free of charge. Finally, the only purpose accepted for such a donation is therapeutical12.
In order to prove that this doctrine is not perfectly sustainable, in the following paragraphs, we propose to present Lemennicier’s main arguments13 and, concomitantly, to develop our critical demarche.
(i) Thus, the first reproach is that the given ethical-philosophical doctrine is socially noxious. Banning genes manipulation or organs sale, artificial procreation or embryos freezing could hinder chances man have for improving his children’s physical characteristics. Besides, it could endanger lives and even the human species itself.
In this respect, we could easily imagine, exempli gratia, on one hand, somebody whose life is dependent on a kidney or a lung transplant and, on the other hand, a family, which could consent to such a donation after the death of one of its members but does not do that because it is not motivated in any way. We could also imagine a homeless person whose unique chance of survival would be the selling of an organ he can live without but who’s hindered by the law to resort to such a commercial exchange. In the same register of ideas is the example of a sterile mother, who cannot enjoy a better life, along with her children, because of a specific law interdiction concerning the artificial procreation into a test-tube or with the participation of a carrier mother. At the opposite pole is the situation of a very poor woman, a possible carrier mother, hindered by the law to earn money and, in this way, to improve the quality of her family life.
In this context, it is relevant to ask ourselves if the law discriminates between different utilizations of the human body. There are employees who, in the struggle for survival, endanger their mental and physical health by working very hard. There are prostitutes who do not pay any attention to the health of their body. Alcoholics and smokers expose themselves every day to a high risk of fatal diseases like heart ailments, kidney ailments, strokes, etc. Indeed, the European legislations do not totally ignore these categories; nevertheless, because of its many critical points, the given doctrine becomes partially incoherent.
Nowadays, the scientific research makes possible genes manipulation, procreation in a test-tube and embryos deep-freeze – overall, an important number of procedures designed for improving the physical qualities of the human body and for contributing to the genetic diversity of the next generations. The newest discoveries in the field are of a great importance. Human populations with very specific phenotypes and susceptible of disappearance, such as the Pygmies, the Amazonian Indians, the White Europeans and North-Americans, could be preserved either by way of the above methods, or by means of autocratic methods. The second solution is already an obsolete and impermissible one. In order to increase the size of these populations, the modern State should deny some of its modern attributes and revert to dictatorial unpardonable measures, such as: granting subventions and advantages to the numerous families, foreigners’ exclusion from the compact ethno-linguistic groups, etc. Obviously, because of the negative social consequences that the prohibitive laws have in general, the legislator - as State power - should articulate a doctrine based on more solid and coherent arguments.
(ii) The second reproach is that this ethical-legal doctrine is philosophically incorrectly founded.
As we have already mentioned, this philosophical postulate perceives the person as a whole composed by two elements - the human body and the spirit (or the personality). The two are considered as being inseparable and, implicitly, they are legally protected14 from any intrusion which could be liable to transgress one of the following principles: the intangibility and the inviolability. Starting with Kant’s definition of the human person - definition that was assimilated by the European legislatures - and continuing with the analysis of the whole doctrine content, we find out that not necessarily all the individuals posses the attributes of the person. Accordingly to the given definition, the person is conscious of itself, rational, free to choose and to discern the good from the evil; any individual who does not possess these qualities elicits a separate discussion.
Furthermore, in order to examine the coherence degree of this ethical-juridical doctrine, we start by enumerating some discrepancies that could put into question the general validity of the above core definition. Let’s now bring into our discussion the hypothetical case of a serial killer, the one of a lunatic or of a sleepwalker having committed atrocious acts. Obviously, because we could easily doubt of their capacity to reason or to distinguish the good from the evil, the question whether these people are persons or not seems to be very appropriate. In this case, should we still respect their rights to intangibility and to inviolability over their body or their intellectual products15? Should we formulate special norms for those people who do not belong any longer to the category of persons? On this subject, the political theorist or the sociologist could draw up an entire speculation.
The question about who might be and who might not be a person is even more difficult when it concerns the beginning of the individual’s life. What is the statute of the fetus in the private law? It is important to know that, on the one hand, as the fetus can not be associated by definition to a person, it is not legally protected in the name of the two principles (intangibility and inviolability). On the other hand, the mother, as a person, is protected by the law in the detriment of the potential child. Though the fetus is not defined as a person, it can be instead easily defined as a prolongation of the mother’s body.
The question raising here is: According to what rights women can freely dispose of a part of their body, in occurrence of the fetus? By the right to abort, the principle of inviolability is not too easily transgressed? By the right to abort, does the private law correctly differentiate between the various elements of the human body people are allowed to alienate? Because they are renewable, the private law allows us to cut our nails and hair, to donate blood, maternal milk and placenta. In general, the restrictions on the human parts that fall in the category of the offal are much less strict16. Moreover, commercializing such products is generally allowed. But what about the fetus, by letting the mother renounces to it, does not the law situate on the same scale step the fetus and the renewable human parts? For the bioethics, this is one of the fundamental questions the humanity did not find a clear and definitive answer.
We move now our attention to the intellectual rights. In accordance to the author’s moral rights, somebody’s intellectual work represents a prolongation of the author’s personality and, as a direct consequence, nobody has the right to modify it because this action would be equivalent to the violation of the personality. We observe that the private law protects even something inanimate, conferring personality to it (exempli gratia, to a sculpture or to a picture) but the law does not do the same with the fetus, even if the latter is alive. Hence, it can be concluded that the fetus – the potential child – does enjoy neither the quality of a person, nor the one of a personality.
Arrived to the same dilemma, Bertrand Lemennicier believes that the body should be defined as a „biological machinery” within which the spirit lives. And, because the spirit is „incorporated within this machine”, because it is „its unique occupant in general” and because „the spirit can not change it”17, the author pleads for the juridical recognition of the person’s private property right over its body18.
(iii) The last major reproach, formulated by several authors (Monique Canto-Sperber, Bertrand Lemennicier, etc.), is that the doctrine in question mixes up Law and Morals. In terms of morality, anyone can freely decide what is moral and immoral, what is human and inhuman for himself; each one of us should have the right to live his life the way he likes, without any external intervention, as long as he does not deter the others to spend their lives as they want to. The State, through the legislation, sets the limits between legal and illegal, interfering sometimes with the moral rules. Theoretically, the essential principle guiding the State in its legislating action is inspired by a Rational Choice philosophy adapted in order to serve (and maximize) the „common good”.
What appears more interesting here is the way in which the State decides to position itself on one side or another through the delimitations it introduces between „moral” and „immoral”. We offer an hypothetical example for discussion - the one of someone who, biologically, is a man but who feels and acts like a woman. Therefore, he decides to resort to an operation in order to transform his body into a new one, within which he would never feel like a prisoner, a body more convenient with his frame of mind. But the State, through its laws, prohibits this kind of operations, in the name of the four principles. By sex change operation, three of the four principles would be clearly violated: the inviolability, the intangibility of the body and, implicitly, the principle of the physical healing purpose. The matter of the gratuity does not occur in this case, which concerns a single person. But what would be the interpretation that the law gives for the „healing purpose” associated to such an operation? We know that the law authorizes the medicine to treat all the physical and mental diseases of the human body; notwithstanding, it says nothing about the diseases of the „soul” or the „spirit”19. If the psychologist – or, in some other cases, the psychiatrist - does not succeed to fix this kind of problems, there is no other conventional way. In the countries where sex changing surgery is not allowed, because the medicine decrees that his body is doing fine and because the psychologist fails to solve a problem whose cause is not of psychical nature, people cannot get the antidote for such an „inexistent” suffering.
That said, it can be concluded that, despite the medical progress in discovering the pathological causes of the patient’s bad condition, from the point of view of the law, the person, as a two-dimensional system, seems to not really matter. The law is interested only in the physical condition, the condition of the body, and not in the one of the spirit. This reproach, extracted from the scientific literature, shows that the juridical doctrine contradicts itself, this time by practically denying the accepted definition of the person as a system with two components.
The Notions Of Life And Death Within The Private Law
The big controversies about the moments when life begins and ends
Nowadays, several medical procedures without having healing purpose are legally permitted in Europe and outside Europe. The list of these procedures opens with the minor embellishment operations and ends with the abortion. Abortion does not aim to procure an antidote for the mother’s disease but, most of the time, for her bad condition or unwilled discomfort (because the pregnancy or the baby is not convenient to her life plan). From a social theoretical point of view, except the problematic cases, the decision to resort to an abortion represents an act of selfishness20, reason for which the Morals and the Religion reject it.
An act contrary to the Morals determines the social disapproval, the disgust, but it will not obligatorily be legally sanctioned (for instance, the pregnancy interruption in the orthodox or catholic communities from countries where abortion was liberalized). In the same way, a moral act is not obligatorily a legal one (school girls wearing the traditional Muslim veil in the public education institutions where religious symbols are not permitted). In Western Europe, an important effort was done in order to separate Morals from Law, because these ones are two different normative systems, unable to function together. This process, still incomplete, is today the object of a serious critical analysis21. In Romania, the abortion was legalized after the moment ’89; in France, the Veil Law of 18 December 1975, the one that liberalized the abortion, aimed to put an end to the dramas women lived before. The American Supreme Court legalized the abortion on January 1973 but the main controversy continued, each camp having very strong arguments. Today, though the abortion is a legal operation in a significant number of countries, it is not implicitly tantamount to an ethical or moral one. Morals and Law are not equivalent.
The arguments for the Veil Law, as Monique Canto-Sperber wrote22, were juridical and non-juridical. This law had a social function and, in the same time, a „compensatory” one. Thus, on one hand, it contributed to the improvement of the public health and, on the other hand, it responded to a militant demand (the affirmation of women’s autonomy23). From the point of view of Ethics, it would be preferable that nobody resorts to the abortion because this is not at all a desirable experience24. From the point of view of Morals, the gravity of such an act depends a lot on the definition of the human fetus25. Certainly, everyone’s personal opinion on this matter results from his religious and cultural background.
In the matter of abortion, Law and Morals26 do not always dovetail. In the countries where the abortion is a legal operation, there are still other two types of constraints: primo, the moral constraint, subjective, determined by the personal habitus; secundo, the one of the social structure within which the woman is inserted and lives27. Trying to overlap Morals and Law is useless. For this doing, we should practically associate a particular legislation to each community sharing a given set of ethical principles.
Because it is impossible to conciliate the two visions, it is mandatory to find a method through which the simple legality of an act considered as immoral by the majority of the people does not encourage the growth of the phenomenon. In this register of ideas, it is remarkable that in Great Britain, where the abortion is authorized until the 22nd week of pregnancy, the percentage of the pregnancy interruptions (in comparison with the number of births) is obviously much more reduced than in France. This situation proves the efficiency of the legislative liberalism28 and of the prevention policies29.
Regarding the abortion, the Christian religions are very drastic: the Church has to condemn abortion, euthanasia, love without commitment, homosexuality, etc.30 By rejecting all these, what religion does is, in fact, to resume and codify the basic rules for the collective survival. In fact, the religion, acting similarly to the legislative stipulations and the common law provisions, aims to make life easier within the society by prohibiting the behaviours that could be prejudicial for the collectivity. For instance, a society where the homosexuality would become a generalized norm or where all women (or their majority) would systematically take contraceptives and recourse to abortion would condemn itself to disappearance.
Science pretends that every live organism is an individual because its genetic code is unique. Despite this scientific assumption, the issue continues to produce important moral and philosophical inquiries31. As a consequence, the laws differ depending on the interpretations given by the legislators. In France, for instance, the legislator settled the juridical statute of the human embryo as follows: the conceived child is considered as born every time this could represent an advantage for the baby. If somebody wants to transmit a heritage to a child still unborn, the law provides the possibility for a succession case. At the contrary, in the case of a road accident ended with the death of a pregnant woman, the guilty car driver will be condemned for having provoked one death - the mother’s one; in this case, the judge cannot pronounce a condemnation for a double death because the child does not already possess a juridical statute32.
The States cannot remain neutral in this respect, their positions are not always the same but, at the contrary, very different. The next paragraphs illustrate the variety of these approaches.
Thus, in 2002, the French Government violently attacked Vatican to the United Nations on the abortion matter. The French delegate’s declaration is very relevant for the French position33. The French delegation founded its arguments exclusively on the issue of the public health, without specifying to what extent the public health might have been affected by the Vatican law project. These arguments still matter a lot.
In Czech Republic, a law ratified under Vaclav Havel’s regime obliges the women to bury their aborted children in a dignified manner, settling a fine of 3500/8750 FF as contravention. For the Czech Government, this aspect of the abortion received a greater importance than in other European countries (and in comparison with the other aspects).
The Finish Law from 1970 allowed the right to abortion to all women. The respective Finish law is known as being the most permissive or liberal of the world. It was founded on the base of several principles: the women’s rights, the equality between social classes and regions, the public health, etc.34 The easy access to the contraceptives and the sexual education at school offer a part of the explanation for the lowest figures of the pregnancy interruptions in Europe.
Poland has one of the most restrictive laws on abortion. During the Assembly of 29 September 1999, the UN Commission for the Human Rights consistently criticized this law for causing a high number of clandestine operations and, implicitly, for endangering women’s life and health35. In the UN experts’ opinion, the prohibition of VIP raises two important questions: firstly, about the women’s discrimination and, secondly, about the violation of their right to life and health. The World Health Organization defines the regulation of the fertility as a method of „reproductive health”. The European Union justifies the connection between abortion and the reproductive health in a similar way.
The feminist researches established direct correspondences between the divorce, the right to abort and the democracy. As Joan Scott proved36, in the past, the legislators tried to impose a certain familial order by means of the control on marital relationships; nowadays, the conservative ideologists try to introduce a series of laws on the organization of the family and the behaviour of its members.
Each authoritarian regime had the tendency to legitimate its domination and its control on the private sphere by forbidding, among other things, women’s participation to the political life, by banning the abortions and imposing clothing codes for the women37: briefly, by rationalizing the fertility. But not only the totalitarian regimes were interested in controlling fertility. All the welfare states develop social and cultural programs of fertility control. So then, since the dichotomy between policies based on incentives/ policies based on penalty does not constitute a strong criterion, what makes the difference between an authoritarian State and a welfare State?
Nowadays, it would be reluctant to discuss upon the prohibition of the abortion. In order to avoid the negative effects of the clandestine operations, the European States had already imagined legislations essentially based on an utilitarian logic, inspired by a Rational Choice Theory adapted for the „common good”. Contrary to what Françoise Collin wrote38, we believe that this situation does not lead to the corruption of the democratic pattern. One thing is clear: because the total prohibition of the abortion would produce uncontrollable effects, the legislator removes this act from penalty, introducing strict limitations. This does not mean that the right to abort constitutes a woman’s fundamental right, the more so as it enters in conflict with the child’s right to life. It is for this specific reason that the right to abort should not represent a claim for the feminist groups, which militate for the women’s autonomy. The objective of promoting women’s equal rights should be followed within a different area – an area of social and political claims (equal access to jobs, participation at the elections, etc). Our most important partial conclusion would be that the right to abort should be discussed by scientists - by men and women scientists - but not by feminist militants, who are tempted to articulate a vindictive and illegitimate discourse.
As long as the topic of abortion is not approached, establishing the juridical statute of the human body is a matter of juridical philosophy. Freely disposing of particular products or parts of the human body is a matter that puts into question the integrity of the human body. The right to suicide, the right to euthanasia and the right to abort raise the question of the life and death in the Civil Law. The two main questions - integrity and life - are differently codified in the Penal Law. To attempt to the integrity of the human body is a crime against the Law; to attempt explicitly to the individual’s life is to commit a tentative of murder or a murder. Here we have a strong reason for pointing out the importance of establishing inflexible limits between what is legal and illegal.
The fact that a VIP provoked after the legal term could be considered an infanticide increases the importance of the juridical limits, settled in accordance to a conventional biological criterion. Today, the major challenge for the jurisprudence is to decide whether the unborn child represents/ and, then, should be treated by the Justice as a juridical subject or as a juridical object. The answer is crucial; the child’s right to be born depends on this answer. In the Civil Law, the „right to a child” and the „right on the child” are very different39. In the contracts, there are references to the born child and, also, to the still unborn child, the latter being even more controversial. The two different rights are very important within the discussion (between the parents and the biologist) about the procreation in vitro or the one (between the future parents and the mother of substitution) about the procreation with the help of a carrier mother.
„The child of the science”40 does not represent a product of commercial or manipulation potential. „The child of the nature”, as long as he is not an embryo (starting then from the moment when he is considered as being a person, with a private personality), does not fall into his mother’s property. What still remains uncertain is the moment beginning with which the child’s personality is formed. Generally, the Law takes into consideration infans conceptus; this notion represents a fiction destined to justify the rights of succession. These rights are conceivable with the condition that the child is alive and viable41
. Conversely, if the legislator could settle such a contract a priori and impose it as a general norm (the child still unborn, potentially alive and viable, is considered as a person, who posses juridical personality), all the pregnancy interruptions (VIP) and all the experiments on embryos would be considered as homicide and, implicitly, prohibited and condemned.
In order to establish this decisive moment, the Theologians of the Middle Ages had tried to link it with the appearance of the soul. Today, modern biologists determine such a moment through an analysis that put under a magnifying glass the cells differentiation and the development of the Nervous System42. Most of the liberal legislative systems define this beginning as the moment of transformation when the embryo becomes a fetus; as a consequence, the VIP after the 10th week of pregnancy could be associated with a felony. What is curious is that the Law consecrates the notion of the child’s limited personality. In the jurisprudential texts, on the one hand, the child as embryo is defined as a juridical object and, on the other hand, the child as a fetus - as a juridical subject.
The distinct political positions with regard to this issue have particular correspondences on the realm of the morality:43
Morality of abortion
Laws of abortion
The totalitarian position has nothing to do with the women’s right to choose and with the limits of exercising this right. For instance, in the foster communist Europe, the more a country was under-populated, the more their regimes were preoccupied to increase the population. Generally, all the conservative regimes, convinced by the fact that the fetus is de facto an unborn baby, perceived the abortion as a volunteer homicide. The radical liberals consider the abortion as a simple appendectomy; there are people for whom the fetus is just a „clump of living cells and hence the abortion is merely an operation which removes some part of one’s body and hence is morally innocuous”44. The moderate liberals pay much more attention to women’s right to choose.
For the Conservatives, the human life begins at the moment of conception or fertilization - moment that makes possible a discussion about a potential human being/ a human being with potential45. For this particular position, two main arguments exist. The first argument is offered by the theologians and is also shared by the Catholic Church and its philosophers; Thomas Aquinas held that the human soul is infused into the fetus from the moment when the human shape and the basic organs are formed. The second argument, the secular one, emphasizes that the difference between a baby about to be born and a baby of 6 months is morally insignificant. John Locke linked also the person to the existence of the soul.
In the religious conservative view, the fertilization in vitro is totally unacceptable, the contraceptives contradict the essential purpose of the sexual act, the foethal euthanasia is unconceivable, especially because the fetus cannot give his consent.
The extreme liberal view, the most permissible, defines the fetus as some piece of the human body, without any importance, that can be destroyed anytime. According to an extreme liberal view, the fetus has the moral characteristics of an animal and, implicitly, the pregnancy interruption is not graver than killing animals. In order to prove that the fetus does not matter, the extremist liberals opposed to the notion of person that of human being, the latter representing a simple collection of cells. As a consequence, because only persons have the right to live, the fetus or the child still unborn has not; killing non-persons is morally neutral - killing fetuses, similarly.
For the utilitarianism, „abandoning the sanctity of life”46 is an important principle. In order to maximize the happiness (John Stuart Mill) and the pleasure (Jeremy Bentham) and in order to minimize the suffering and the misery, the utilitarian doctrine is ready to treat the abortion and the euthanasia like every other human action: such actions could be bad in some circumstances, good in others, according to the consequences. Abortion and euthanasia are methods through which people sacrifice a potential life for a real one, methods through which people put an end to someone’s life because this person will be more miserable than happy in the future and, also, because the relatives’ and friends’ life will be easier.
Nowadays, the human cloning, the therapeutic cloning47, the Eugenia, the euthanasia and the abortion raise substantial ethical and jurisprudential questions. All these concepts - and, in the same time, procedures - became possible thanks to the evolution of the biological theory and of the genetics. Along with the scientific evolution within the biology the philosophy and the social-political theory, the social Darwinism, the scientific racism and the sociobiology received new dimensions. Also, the division between humanism and evolutionism became very fragile; the scientific humanism resulted from their encounter. Nowadays, in the case where the physician establishes through a diagnostic that the baby who is to be born will suffer of a serious affection, people’ tendency is to confer a quite unanimous consent and full justification to the demand for VIP. Generally speaking, people agree to avoid suffering and they reject the insufficiencies of the human body for survival. Practically, this is the argument for increasing the capacities of the human body through „light Eugenia”?
Another important question for the private law and the bioethics is: why the suffering patients, without chances for survival, should not enjoy the right to euthanasia? There are countries which consider that the assisted suicide (passive euthanasia) should be legalized with the provision of the patient’s conscious agreement, after the failure of any healing treatment. Their logic was that even a moribund patient could find the joy of living, deploying certain activities, sharing his last moments with the family and his friends. The law on euthanasia should always take into consideration extreme cases, too; it should give to all of us the opportunity to dispose of our capacity of reasoning in deciding the solutions for our lives, as long as these decisions do not constitute a threat for the other individuals’ rights.
The majority of the European States consider the practice of euthanasia as a crime, despite the large presence of this topic within the public debates. Only Belgium and Holland did already exempt the euthanasia from penalty under certain conditions. France and Great Britain condemn the active euthanasia and assimilate it to a murder, as well as the passive one, which is assimilated to a crime (medical non-assistance to a person in danger). In Germany, the subject remains taboo since the Nazi regime. Starting with 2001, Holland is the first State in the world that adopted a legislation liberalizing euthanasia, obviously under strict conditions. From 2002, Belgium established the following conditions: The patient should suffer because of an incurable disease for which the medicine has no solution, he should have insupportable pains. Switzerland differentiates between euthanasia and assisted suicide; the last one is not equivalent with the passive euthanasia48.
Because the euthanasia („assisted suicide”) and the suicide have a lot in common, both became a very interesting topic for the comparative psychology. The main question to be answered will be: What the two decisions have in common? The psychological investigations differentiate between several types of suicide: selfish, unselfish49, anomic and fatalist50. If some characteristics of the suicidal act belong or not to the assisted suicidal act, this is a good question for the psychology and the other behavioural sciences.
Paradoxes in the Law
Theoretically, the legislative body pursues good purposes. Nevertheless, because it is not always composed by the best specialists of the approached domains or by the most representative members of the concerned social communities, the majority procedure and the eclectic structure of the legislative body are not always sufficient criteria in order that the State might emit a popular official moral opinion and, in this way, solve the given issue. Practically, what the State does is to impose a public moral through a public compulsion. The discontents are inherent.
An already famous example is the one of the people having the religious conviction that, because God is their bodies’ absolute owner, nobody has the right to donate an organ or anything else without the divine assent. Religions and personal beliefs have a big influence on people’s opinions and attitudes. Because the law is unable to conciliate them, all it can really do is to create and keep the needed conditions for a society based on respect for human rights. Several authors believe that one of the recommended positions the law should take is to recognize the person’s property right over the human body. According to these authors, thereby, the State would become neutral from the point of view of the Morals, Morals and Law would be finally separated. Their arguments are quite clear: In the 21st century, the State ought to base its reign on tolerance and not on public compulsion. It cannot treat anymore its subjects as slaves and it cannot revert anymore to totalitarian methods because the society is emancipated enough to remonstrate against it, the individuals are emancipated enough to act freely and contrary to the rules trying to impose an unwanted public control over their bodies. On the other hand, the counter-arguments emphasize the negative effects that the privatization of the human body may have: for instance, the commercialization of the human body and, implicitly, the formation of the hampered categories. Primo, if the market would fix a certain price for every human product (eventually, different prices for different blood groups, for different organs, etc.), poor people needing a transplant would never have the possibility to benefit of the law, been excluded from this market. Secundo, in order to gain some money, people might be tempted to sell ill organs or infested blood. The examples are endless.
Returning to our first example, one can sustain that this particular market, as any other, could be regularized. Anyway, the other side of the medal would be the generalized penury of organs. The poor people’s eventual temptation to sell organs should not worry us very much; practically, this social segment can put into danger its life or health in so many other ways: prostitution, work in mines, etc. Fortunately, the donation of an organ would remain an assisted medical operation. Unfortunately, the physicians, interested in earning more money, could become commercial agents between the customers and the sellers. Concerning the second example, the main counter-argument would be the one that not only the sellers could have bad intentions and offer products of bad quality, but the donators too. Moreover, the two categories could be simply unaware.
Conferring to all persons the right over the human body could be a solution. The inconveniences result only from the professionalization and the commercialization. To realize that each human individual, including yourself, posses a commercial potential is to regard the human being as a mean and not as a purpose in itself. How the jurisprudence would tackle with the consequences of this conceptual confusion? People could sell/ rent their body, couples could ask for a child created in a test-tube as the clone of one of their parents, the State could generalize the Eugenia, etc. Accepting the scientific Eugenia and genes manipulation (versus genetic determinism), legalizing the commercialization of organs (versus the penury of organs), it means to say yes to all those methods susceptible to make life better but do those categories with precarious social and economic conditions have the possibility to enjoy all these new possibilities? This new social cleavage (purchasers/ losers of the game) originating in the Genetic Revolution is already examined within the academic literature.
For the biggest number of authors, the separation between Law and Morals makes possible, besides all other things, the respect for the different moral perspectives and their protection (against the eventual prosecutions and private compromises). Because, as we have observed insofar, each position becomes problematic when the consequences are discussed, the most authors believe that the liberal juridical system is the only one really permitting a rational social approach of the matters analyzed above. The moderate liberalism conceives a flexible juridical system within which no citizen is obliged to renounce to his principles and no citizen is jostled to act against the law.
With this term, designating the „political mythology, realized, internalized, transformed in a permanent disposition, a stable and lasting manner of behaving, talking, feeling and thinking”, we go back to PierreBourdieu, Le sens pratique
(Paris: Minuit, 1980) - Livre I, chap.3, „Structures, habitus, pratiques”.
A first version of this article („The Judicial Statute of the Human Body”) was presented on March 31, 2005, at the weekly assembly (Agora
) of Civitas ’99 Association. It appeared afterwards on the site of the association, in Volumele Civitas99 Alumni
Dominique Lecourt, „La personne humaine”, Res Publica
, Vol. Bioéthique et éthique médicale
, Hors série, No. 1 (Octobre 2002).
„Agis de telle sorte que tu traites l’humanité aussi bien dans ta personne que dans la personne de tout autre toujours en même temps comme une fin, et jamais simplement comme un moyen !” (Quotation from the French version of the mentioned book)
In his Oath
, Hypocrates wrote about medical assistance, abortion, euthanasia, etc. Though without using explicit terms, he pleaded for the prohibition of the abortion.
In this sense, the image of Asclepios, the Greek god of Medicine is illustrative. The story presents him like a mortal punished by Zeus for the fact of having tried to surpass his human condition by resuscitating dead persons. But the love he proved for his relatives saved him and brought him immortality.
In 1971, the Soviet version of the medical oath was significantly different in comparison with other variants of it: „I swear to follow the principles of the communist moral…”.
MURS (Fr., Mouvement Universitaire pour la Responsabilité Scientifique).
Bertrand Lemennicier, „Le corps humain: propriété de l’État ou propriété de soi?”, Droits
13 (1991). (our translation) The article was published also in Le Figaro
(the 31st of August 1989).
This specific doctrine underlines the European legislation in the field.
Lemennicier, „Le corps”.
In spite of these considerations, in France, for instance, the law passed on 22 December 1976, relative to the organs sampling, permitted to the hospitals to freely dispose of the corpses, in the absence of an explicit consent expressed during lifetime.
Lemennicier, „Le corps”, 112-123.
The Private Law protects the products of the human body (hair, nails, placenta, cells, etc.), as well as the people’s intellectual products (in accordance to the moral rights of the person).
From this point of view, it would be interesting to study the equivalent doctrine in the American states where the death penalty is provided by the legislation.
Though the human corpse is not something else but offal, the law protects it against the alienation, in the absence of the deliberate consent of someone who is legally authorized in order to do this thing (the person itself, during life; its family etc.).
Lemennicier, „Le corps”, 116.
For the picturesqueness of Lemennicier’s arguments, we give a quotation from the mentioned article, p. 116: „L’homme ne peut voler avec des ailes: qu’à cela ne tienne, il vole avec un avion ou avec un deltaplane. Il ne peut vivre sous l’eau, il invente les bouteilles à oxygène. Il ne court pas assez vite, il utilise des anabolisants. Il n’arrive pas à tuer avec ses propres mains, il invente des armes qui tuent à distance. Il ne calcule pas assez vite, il invente l’ordinateur. Il veut être un créateur, il s’efforce de stimuler son cerveau avec des drogues. Il ne peut vivre plusieurs vies en même temps, il invente le cinéma et pendant deux heures se prend pour un agent secret de sa Majesté la Reine d’Angleterre. La modification du corps humain en vue d’améliorer ses performances est irréversible parce que cela fait partie de la poursuite du bonheur. Pourquoi vouloir empêcher la manipulation des gênes, la transplantation des organes, la procréation artificielle, etc., si cela permet aux individus de réaliser leurs rêves sans violer les droits de propriété d’aucun autre individu?”
These terms are also used by the ethical-juridical philosophy.
In his book - The Selfish Gene
, (Oxford: Oxford University Press, 1976), 6, Richard Dawkins wrote that „the commonest and most conspicuous acts of animal altruism are done by parents, especially mothers, towards their children”, that „[…] both individual selfishness and individual altruism are explained by the fundamental law that I am calling gene selfishness
”. Therefore, we could consider that it exists a complex selfish logic behind the altruistic behavior. Such an approach could be outlined on the basis of a reductionist similitude between the human nature and the animal one. This approach extracts its arguments from outside Durkheim’s social anthropological perspective. For Emile Durkheim, „even emotions as sexual jealousy and paternal love are the products of the social order”. V., Leda Cosmides, Jerome H. Barkow, John Tooby (eds.), The Adapted Mind
, Part I „Evolutionary Foundations of the Social Sciences” (New York: Oxford University Press, 1992), 28. This discussion, obviously very lapidary, shows us rapidly how complex is the analysis of selfish/ altruist behaviours.
Monique Canto-Sperber dedicated an important part of the book L’inquiétude morale et la vie humaine
, (Paris: Presses Universitaire de France, 2001) to this topic.
Monique Canto-Sperber, „Séparer droit et pensée morale. La question de l’avortement”, Res Publica
, Vol. „Bioéthique et éthique médicale”, Hors série, No. 1 (2002): 23.
The gender roles revolution and the sexual revolution aimed at changing the traditional social expectations that women would have numerous children, would spend most of their time at home and would have minor involvement in the activities from outside the family, in business or public life, etc.
The abortion is often preceded by the mourning provoked by the child’s loss. Such an experience raises serious problems to the persons with fragile personality. Most of the time, the decision to renounce to the pregnancy is determined by a mixture of factors: the failure of the conjugal life, the rejection of the pregnancy, the absence of a couple project. V., Isabelle Tamian-Kunegel, L’avortement et le lien maternel. Une autre écoute de l’interruption volontaire de grossesse
(Lyon: Chronique Sociale, 1997), 21.
In Summa Theologica,
Thomas Aquinas asked the question:
„This thing without head, without heart, without brain, without limbs, would have a soul?”
From a simplistic point of view, abortion is about killing. From the feminist point of view, the issue is related to women’s rights. Obviously, the interpretations and the arguments are endless. The confusion between morality and legislation is common for an important number of arguments.
We consider that the habitus
, as well as the stable dispositions,
resulted from the interaction with the structuring structures,
influence women’s opinions and attitudes in a more or less conscious way. V., Pierre Bourdieu, Simţul practic
, Chapter „Structuri, habitus, practici” (Iaşi: Institutul European, 2000), 81. In the case of a faithful woman, the habitus
produces certain individual practices, feelings and thoughts, induces also specific moods. All these elements encounter the compulsions originating in the individual’s given social milieu. V., Bourdieu, Simţul,
Chapter „Credinţa şi corpul”, 104-127.; Pierre Bourdieu, Dominaţia masculină,
Chapter„Incorporarea dominaţiei” (Bucharest: Meridiane, 2003).
It is important to specify that today, in the world report, for 5 births correspond 2 abortions. In France, the capacity of the hospitals specialized in pregnancy interruption (VPI) will increase in the future, because after 2000, the VPI number increased also with approximately 4 % every year.
Joseph LeDoux considers that the prevention programs should take into consideration the hypothesis of the syndrome called „psychic blindness”, syndrome which could be responsible for the decision to interrupt a pregnancy. V., Joseph LeDoux, The Emotional Brain. The Mysterious Underpinnings of Emotional Life,
(New York:Simon and Schuster, 1996), 90-92.
Nicole Laurin, „Si l’Église cessait d’interdire”, Relations
671 (Sept. 2001): 20-22.
There were moments in the history when the abortion was justified by means of aberrant explanations. Aristotle and his followers, for instance, associated the twins with the monstrosity, with an „abnormality occurred because of the substance” and the female twins with the gravest excess of feminine substance. V., Françoise Héritier, Masculin/Féminin. La Pensée de la Différence,
Chap. „D’Aristote aux inuits. La construction raisonnée du genre”; ”La Monstruosité, excès du féminin” (Paris: Odile Jacob, 1996). We could imagine also other aberrant interpretations (exaggerated and, sometimes, even extremely mythologized) given in time by the philosophy, the medicine and the biology - interpretations that distorted the human reality, the woman’s statute, the inter-gender relationships or, simply, the biological distinctions between sexes. At this chapter, the influence of the medical doctrines is not to be ignored. V., Yvone Knibiehler, Catherine Fouquet, La femme et les médecins
(Paris: Hachette, 1983).
In other words, the French Public Law confers a juridical statute to the human fetus and to the human embryo every time that the baby’s interest could be preserved.
„Encore et encore, ma délégation croit que nous devrions fonder notre décision uniquement sur la base de la santé publique et l’homicide involontaire du foetus”.
Beginning with the 80’s, the Northern countries, which are very liberal regarding the matter of abortion, register a higher birth rate (at the level of the women from the working class) than the societies where the abortion is still difficult (Germany, Spain, Italy).
The Polish law permits VIP only for the exceptional situations (malformation of the fetus, rape, etc.).
Joan W. Scott, „Genre: une catégorie utile d’analyse historique”, Les Cahiers du GRIF
37/38 (1988): 60.
For this point of view, the following article is illustrative: Sylvie Steinberger, „L’inégalité entre les sexes et l’égalité entre les hommes”, Esprit
, Numéro special (Mars-Avril 2001): 32. The author resumes the analysis of the theories in the field, sustaining the determining dimension of the biological affiliation. The sexist philosophy was also based on biological arguments. „Les caractères physiques et moraux propres à chauqe sexe procèdent des principes physiologiques et cosmologiques (chaud/froid, sec/humide) et, partant, ne decoulant pas en droite ligne du sexe”. V., Steinberger, „L’inégalité”, 32.
Françoise Collin, „Mythes et réalité de la démocratie”, in Eliane Viennot (sous la direction de), La démocratie française ou les femmes indésirables
(Paris: Publications de l’Université de Paris- Denis Diderot, 1996), 32-36.
Pierre Raynaud, „L’enfant peut-il être objet de droit?”, Droits
Robert Clarke, Les enfants de la science
(Paris: Stock, 1984), 151.
Philippe Salvage, „La viabilité de l’enfant nouveau-né
”, Revue Trimestrielle de Droit Civil
„The study of embryology sustains that during her fertile years (ages 15-20), a woman’s ovaries usually relieve one egg a month, about two weeks after the start of her last menstrual flow, in a process known as ovulation. The egg passes from the uterine tube to the uterus. If the egg is not fertilized, it passes out from her body. At each ejaculation, mature man normally discharges 250 million to 300 million sperm cells carrying all genetic information. When the sperm penetrates the egg, the two half-complements of genetic information form a full complement of information in a new and unique combination. Between the fourth and eight week after fertilization, major organs are formed”. V., Hyman Rodman, Betty Sarvis, Joy Bonar, The abortion question
(New York: Columbia University Press, 1987).
Rosalind Hursthouse, Beginning lives
(Oxford: Basil Blackwell, 1987), 15.
„[…] Confusion about potentiality, partly brought about by shifting from being a potential human being (when potential is adjective) to having the/a potential for/to (where potential is a noun). To say that a fetus is a potential human being is not like saying that it has a chance or opportunity to become a human being, an opportunity/potential that may be lost. A human ovum/ sperm/ fetus might be said to be potentially all sorts of things-a potential tree or rabbit, for example”. V. Hursthouse, Beginning,
The practice of therapeutic cloning, which uses embryos for the fabrication of medicines, is rejected in France and many other European countries. The destruction of unused embryos still remains an unsolved juridical problem because of the confusion existing at the level of the juridical statute of the embryos. In spite of this situation, a good number of scientists choose an utilitarian position: „L’utilisation d’embryons surnuméraires n’implique pas, à la différence du clonage thérapeutique, le risque de favoriser un trafic d’ovules, ni de faciliter le passage au clonage reproductif, la naissance d’un enfant cloné”. V., Axel KAHN, „Clonage, eugénisme, avortement, euthanasie: où allons-nous?”, Res Publica
, Hors série, No. 1, Vol. Bioéthique et éthique médicale (
Octobre 2002): 22.
According to a study published in the Britain revue The Lancet
and made on 20.000 deceases, in 6 European countries, 51% (of the cases) in Switzerland, 36% in Sweden, 38% in Belgium, 41% in Denmark, 44% in Holland and 23% in Italy were provoked by euthanasia
It is quite difficult to demonstrate how the human individual becomes unselfish if we have already lectured Richard Dawkins, The Selfish Gene
, Oxford University Press, Oxford, 1976, and the studies wrote from a Rational Choice perspective. We know well that no human action is completely unselfish. The self-murderer sacrifices his life with a selfish purpose, even unconscious. Animals choose death for saving their offspring; terrorists die for a better life of the future generations or for going to paradise.
Despite the considerations of spiritualist-philosophical order, of theological-dualist order or materialist one, despite the explanations regarding the suicide’s causes (the failure of the social integration, the negative events), it does not exist a different juridical treatment for suicide types. V., Tudorel Butoi, Valentin Iftenie, Alexandru Boroi, Alexandru, Butoi, Sinuciderea, un paradox. Consideraţii psiho-sociologice, bio-medicale şi juridice
(Bucharest: Editura St. Medicale, 2001). V. also, Cosmides, Barkhow, Tooby (eds.), The Adapted,
Part I. „Evolutionary Foundations of the Social Sciences”; Edward WILSON, On Human Nature
, Harvard University Press, Cambridge, 1978.
ANDREEA ZAMFIRA – Doctorand în cotutelă la Universitatea din Bucureşti şi Universitatea Liberă din Bruxelles; Cercetător ştiinţific la CEVIPOL (Centre d’Études de la Vie Politique, Université Libre de Bruxelles).