The objective principle of dignity limits and supervises law. However, weakened by the legal evolutions that have let in so many inconsistencies, will this principle still be able to act as a safeguard?
Last 20th April the “Espace éthique” of Ile de France organised a symposium at the national assembly entitled “entre science et politique, que peut la bioéthique ? ” (Between science and politics, what can bioethics do?). For the occasion, Bertrand Mathieu, an associate professor of the faculty of law, questioned the mutations of law. Indeed, with the progress of science and medicine, or because of social pressure, recent evolutions do raise questions: is there still any sense in laying down rules and fixing limitations?
Gènéthique: Today, what principles regulate bioethics laws in France?
Bertrand Mathieu: As an answer, I will mostly take into account the constitutional principles. Because they are very general, these principles are not fundamentally different from those recognised on an international level. I will mention two: dignity and freedom, the latter being mainly understood as the principle of an individual’s autonomy. They both regulate the law on bioethics. To these need to be associated other principles such as the principle of equality, the right to health, responsibility or freedom of research. Should also be taken into account: one of the specificities of bioethics law, which is that these principles concern not only each individual, but also the human race.
G: Are these great principles still valid today?
BM: As clearly expressed in the letter of the Council of State by the French Prime Minister, one of the questions raised is whether or not there should be a rupture with these principles recognised in 1994 and reaffirmed in 2004 and 2011. Indeed, their scope is not indefinite, and the questions raised may become incompatible with these principles.
Considering this, should they be maintained? Modified? Replaced by a purely casuistic concept as in England, concept which perfectly answers the very supple notion of ethics or “societal request” and the development of an almost exclusively procedural law? If this was the case, the evolution of techniques and practices would no longer be limited by prior rules. I believe it to be a fundamental choice, becoming everyday more compelling.
G: Why should these principles be questioned?
BM: I don’t have the competence to interpret societal requests, I am no scientific expert in that matter, but the law must be coherent.
With a slightly caricatural way of putting things, there are two ways of regulating the law; either using a liberal logic founded on individual autonomy, which will not provide much protection, or using a logic based on objective principles. More protective, this second option is less liberal.
One can try to bring these two logics together. This conciliation results, amongst other things, from the unalienable character of freedoms, which prevents one from sacrificing one’s freedom in the very name of freedom. In some cases, however, these logics turn out to be contradictory.
The law does not dictate what must be in an absolute way, as does a religion or a moral. It says what must be within a certain system. As I said further up, it requires coherence. However, several elements prevent this cohesion in law. First, the questions examined come with important economic issues, and globalisation enables the legal obstacles posed by state laws to be easily sidestepped.
What is more, the law must keep away from two perverse temptations. The first consists in ignoring the technical and social data generated by science, and maintaining, through thick and thin, the purity of ill-adapted rules. The second causes law makers to limit their role to that of a clerk, transcribing the scientific advances into legal rules, continually renewed and adapted.
Finally, the system’s architecture, leads lawmakers to establish a very general framework, as well as procedural rules. The regulation of the various practices is mostly assured by independent organisms, mainly handled by doctors and scientists. There is thus a serious risk of seeing the gap increase between these unchanged principles inscribed in the civil code and the everyday more derogatory technical dispositions, inscribed in the public health code.
G: What is the scope of the principle of dignity?
BM: The principle of human dignity was inscribed in the Civil Code (article 16) in 1994 when the so-called “bioethics” laws were being voted. The formulation of this principle has been inserted between the recognition of the primacy of the human person and the respect of the human person from the very beginning of his life. The interpretation retained by the constitutional council refers to the same principle of dignity which implies that the human person is not treated as a (degraded) object in view of an end he is not acquainted with (enslaved). Thus, contrary to freedom, which presupposes the autonomy of the person exerting it, dignity is conditioned only by the humanity of the being it is protecting. No other consideration, for example the quality of life of that being or his genetic characteristics, can be a condition to this dignity, without disregarding the principle itself.
From that point of view, the principle of dignity is essentially an objective right. In that sense, independently from any individual action in view of its protection, it is self-imposing as an obligation everyone should respect.
The determination of the cardinal principle of the legal system, principle of freedom or principle of dignity, lies within a philosophical choice. The choice of the principle of freedom involves the social system to be regulated thanks to the principle of responsibility which imposes repairing the damage caused by the exercise of one’s freedom. The principle of dignity imposes itself as an autonomous limitation external to the exercise of one’s freedom. It puts limitations to the instrumentalization and merchandising of human beings that science and economy have always needed, either in an altruistic goal through the improvement of sanitary conditions of the world population or the satisfaction of individual desires, or in a goal proper to economic development.
G: Does there exist another founding principle to the law on bioethics?
BM: Yes, I am thinking of consent. It is usually specified that one’s consent must be free and informed. A consent that would not be free and informed would in fact be flawed. Thus, some forms of consent, of which one can doubt they present every characteristic of a true consent, such as represented consent, pre-constituted consent or even alleged consent, are taken into account by the law.
G: If placed in the perspective of the revision of the law on bioethics, how do these principles operate when it comes to matters such as end of life issues.
BM: The question of euthanasia is currently mostly posed as a claim, by an individual, of the right of receiving from a third party a desired death, when this very individual is not able to provide it for himself. If the claim for a free choice of the moment and conditions of death can be discussed, the very formulation of this demand to a “right to die in dignity” is most disputable. It brings up the idea that there are lives which, objectively, are not worth living, that some lives have less dignity than others. On the contrary, the idea of dignity brings out the idea according to which every human life has its own unique importance. Dignity is a quality related to humanity, and bears no other condition.
From a more pragmatic point of view, questioning a principle such as the prohibition of giving death to a third party would open the way to many abuses.
Besides, it is not impossible to think that, when it comes to elderly people, the direct or indirect consequence, admitted or not, of even a partial decriminalization of active euthanasia, would contribute to solving the economic issues related to ageing and dependence. The alternative offered by palliative care is, for example, uncontestably a lot more expensive.
When it comes to fundamental rights, the logics which would lead to a regulated authorisation of euthanasia should also be examined. In regard to the way consenting to death would be apprehended (interpretation of a represented or pre-constituted consent with regards to the sick person, of the intensity of his pain, of his life expectancy…), it clearly appears that the decision would actually be taken by the doctor, to whom would be associated, when appropriate, the healthcare team. As is usually the case in the field of bioethics, the exercise of such a power would tend to be submitted to mostly procedural conditions. The facts remain that the decision would still mostly belong to the medical body, as is currently the case when it comes to stopping a treatment. The doctor, on whom relies in the end the decision, is therefore confronted with ideological, economical, hospital, and family considerations which only make rendering a judgement more difficult and uncertain. Besides, one could contest treating this question in a law on bioethics which mainly deals with the therapeutic side of things.
G: In another field, that of embryonic research, what can be said?
BM: From this perspective, research on human embryos poses tough questions. From a utilitarian point of view, using in vitro human embryos for research ends constitutes a practice which significantly tips the scales in favour of the hope of the benefits provided by such research. If one reasons from an ontological point of view, and if one admits that the embryo is protected by the principle of dignity in the name of the person it holds within, the outcome becomes quite different. It would thus be considered using a human being as a laboratory material for an end totally foreign to it. The debate is perverted by the never-ending allusions to abortion, when in that case we are dealing with a conciliation between the mother’s personal liberty and the protection of the embryo’s life, and not with the use of an embryo to collective ends.
The logic in which positive law is inscribed is that according to which human life is no longer apprehended as a continuous process recognised by science. It is a reality that the law apprehends by categories depending on a time-space reality and, especially, depending on the fate that society and individuals (I am thinking of the notion of parental project in terms of medically assisted procreation, amongst other things) assign to this developing human life. The distinction by categories among embryos (pre-embryos, embryos, foetuses…) aims at allowing researchers to use embryos at their early stage of development. About this exact point, Axel Kahn has formulated the question that needs asking: “How could one peacefully accept that the nature of beings or things only depend on a person’s good will?”
The creation of embryos for research ends leads one to swap from an opportunist conception (some supernumerary embryos are used instead of being destroyed) to a superior level, that of a utilitarian conception which leads one to consider the embryo as an object.
The framework set by international and constitutional rules are, from this point of view, falsely prescriptive when it comes to embryonic research. It is however less open to the making of embryos for research ends: the article 1 of the 1996 Bioethics Convention of the Council of Europe bans the constitution of human embryos for research ends.
G: Ultimately, what would be the risk of a right founded on the autonomy of individual will, limited by scientific and technical possibilities, and regulated by procedural constraints and temporary ethical considerations?
BM: In a system in which the power of law, and more so national law, is relatively limited, the danger would be the development of a deep inequality at the expense of the weakest, and a utilitarian logic, cut away from any ontological or anthropological considerations on humanity. I am more particularly thinking of transhumanism. In that field, there is no self-imposing law, but bioethics constitutes in some ways an “area of acclimatisation” which bit by bit, through small ruptures, leads to very deep mutations, without them having been the object of a reflection concerning their coherence as a whole. Maybe what we need, more than the casuistic analysis of the questions posed by scientific and technical evolutions, is to reflect on the values that found these bans, and the price we are willing to pay either to overthrow these bans or submit to them?
On a more legal level, subjective rights protect those who have the means to defends themselves, while their never-ending multiplication weakens them all. Objective rights define bans which are imposed on all, while the potential victim does not even have the means of defending himself. The strategy, conscious or not, which aims at relativizing or weakening the scope of the principle of dignity is a way of eating away at the only obstacle that stands against the instrumentalization of mankind by mankind, using the exercise of each individual of his freedom as an argument.