Ethics and the law<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

Is legislation necessary and when should the law be invoked?

It should be noted at the outset that in rapidly developing fields the law can never foresee all the situations which will occur in the future and therefore becomes rapidly outdated. Some people fear that a ‘judicial void’ makes it impossible to combat questionable practices effectively. Safeguards are clearly necessary, but as has also been pointed out, it is difficult to prohibit scientific research.

“Prohibiting research not only paralyses science but is also dangerous because of the grave risk that research will continue in secret and be used for more sinister ends”.

This remark by P G de Gennes, 1991 Nobel Prize winner, stresses the fact that the attempt to set legal boundaries too hastily runs the risk of hindering useful initiatives, and of leading to a priori rejection of certain beneficial innovations before the potential benefits or drawbacks have been assessed.

What criteria could therefore be used to establish a legal basis?

The humanist approach gives priority to two criteria:

the quality of life of the individual and the preservation of the human environment.

Quality of life means health in the sense of the full physical, mental and social development” of each individual.

This approach goes hand-in-hand with the continuous evaluation of risks and calls for the development of new forms of ‘social regulation’, namely ethics committees.

Many countries have already adopted a system of regulation of this kind. We believe that examination by an ethics committee of all research programmes and new applications affecting ‘sensitive matters’ in both the public and private domains should be mandatory.

Ethics committees

It must be possible to pose questions continually about good and evil. Legislation clearly stifles ethical debate by laying down strict a priori limits. Ethical discussion circumscribed by strict rules is likely to become sterile.

It is no longer acceptable today in democratic societies for a group, even one with a large majority, to impose its ethical views on society on a whole. A distinction must be made between rules for governing communal life and a community governed by rules. Social life should be regulated by ethics committees.

Ethics committees provide a flexible and dynamic structure for providing reasoned opinions on research projects and on medical treatment reports. Moreover, the experience gained from the work of ethics committees has shown that it is possible to overcome the different forms of antagonism vis-à-vis convictions which are often deeply rooted in society.

Reference to human rights

Provided the purpose is to protect individuals or groups (cultural groups for example) against abuses of power, one is fully justified in staunchly upholding human rights. This enables a series of what are referred to as bio-ethical problems to be clarified, although this clarification is rarely free from ambiguity or debate. The Universal Declaration of Human Rights offers a solid framework for protecting individual freedom and defending individual dignity and equality.

What about bio-ethical problems which the authors of the Universal Declaration of Human Rights could not possibly have anticipated?

Is it legitimate to refer to the philosophy of human rights when dealing with questions concerning the embryo and the human genome and to seek to place them under the umbrella of the Universal Declaration of Human Rights by the use of controversial and contested concepts such as ‘potential human person’, etc.?

It should be noted that the ‘human genome’ is an abstraction and does not exist in reality. What exists is the genome of an individual and this, moreover, changes during the course of life.

No one denies, for example, that human genetics issues call for a high level of vigilance regarding both research and its current and future applications. However, what needs to be protected is not the human genome or the embryo but persons – their right to information, protection of their private lives, their right to enjoy equally the benefits of genetics, respect for their autonomy etc.

There is a danger that this essential, ethical and legal task will be hampered by the unreasonable desire to extend human rights to notions which are confused and which involve a large number of connotations  which at times conflict with the spirit of human rights.

From the IHEU Archives: Synthesis of a talk “A humanist point of view” delivered by Dr. Georges Liénard at the Council of Europe on behalf of IHEU at the Third Symposium of Bioethics: ‘Medically-assisted procreation and the protection of the Human embryo’, Council of Europe, Strasbourg December 1996.