Personhood, And The Rights Afforded; Self Determination

Health has been defined by the World Health Organisation (1946) as 'a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity' [1]. However the maintenance or the acquirement of health through the administration of health resource, when the resource is finite, ultimately affects the individual. To that end it can be argued that the distribution and the subsequent acquirement of health resource defines health as a social good [2] and as such health is a protagonist in the bid for the right to self determinate; the state, in such terms, has a duty of providing factors conducive to that right. Socioeconomic inequalities are at the root of the increasing health gap between the poorest and the richest, a trend described by Julian Tudor Hart in 1971 as the inverse care law [3]. The law surmises that the availability of good medical care tends to vary inversely with the need of the population served [3]. Health care reform is a potential tool for addressing socioeconomic disparity, a priority for governments. However, the disproportion between the demand for and supply of health resource represents a political and increasingly legal challenge to governments, a crisis perpetuated by the steady global population rise (1.1%); 75 million persons each year [4]. This is a global crisis and is the most significant driver of health care reform, thereupon 'it can be confidently predicted that in the future the importance of public law regulation of health care provisions is going to come to the for' [5]. To circumvent the development of more adaptive legal practices in regards to health resource is creating an 'instrument of politics rather than a substitution for it' [6]. Be that as it may, the problem remains; 'the relation between private morality and a public policy that is democratically acceptable is a subtle and complicated interrelation' [7].

Such a dynamic is part and parcel of popular bioethical discourse and is especially pertinent in the debate on the uses of the embryo, an argument that has been recently stilted by advances in technology favouring adult pluripotent cells [8]. What is interesting about this argument is the question of personhood, for this is vital to the subsequent rights afforded to the embryo in its bid to self determinate. Pluripotent cells, opposed to totipotent cells, cannot be regarded as an embryo; this avoids the question of personhood and accordingly preserves life and the potential for it.

The Universal Declaration of Human Rights approved by the United Nations General Assembly 1948 states 'all human beings are born free and equal in dignity and rights,' that 'everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind,' that 'everyone has the right to life, liberty and security of person' and it affirms that this is an 'equal and inalienable right of all members of the human family' [9]. Article 2(1) of the European Convention of Human Rights (ECHR), reads: `everyone's right to life shall be protected by law` [10], yet the subject of when the right to life begins was dismissed by the Strasbourg court by a 14-3 majority, as a question to be decided at international level [11].

Clearly how we construct the embryo alters our moral stance towards its right to life. The current stance in English law is one of gradualism; there exist varying degrees of right to life for the embryo and these rights strengthen as it develops. A fertilised human egg, outside the womb, does not invoke an active potentiality for personhood, for the simple reason that it no longer exists in an environment where the resources for life are given [12]. Ultimately the question of status is conditional, as established in the case of Evans; a woman lost her rights to her embryos as her estranged husband refused to give consent [11]. It was held in this case that the pre-implant embryo did not have a right to life under Article 2 of the ECHR; as it could not survive outside the womb [10;11]. The embryo has been constructed around a conflict of interests; the rights of the embryo and the rights of the mother. Current abortion law is based on the interpretation of the Abortion Act 1967 and section 37 of the Human Fertilisation and Embryology Act 1990 [13]; abortion is permitted up to 24 weeks, on the condition that continuing with the pregnancy holds a greater risk to the mother or her existent children [14]. The relative ease in which abortion can be accessed is rooted in the lack of rights afforded to the foetus, most significantly the right to life. Case law, such as Paton v BPAS, established that the foetus has no legal personality [15]. Anti-abortionists argue that in order to justify the termination of a human entity it is essential that the law de-personalise the subject; the law would have to carefully legislate or risk curtailing the rights and activities of the pregnant woman. British law greatly favors the healthy foetus over the disabled; this encourages the idea that some abortions are morally worse than others. Section 1(1)(d) of the Abortion Act has since been labeled as discriminatory; 'it reinforces negative stereotypes of disability' [16]. Recognising discrimination here does not require the foetus to be ascribed personhood, however, if personhood was awarded and the legal right to life substantiated, section 1(1)(d) of the Abortion Act 1967 would be considered incompatible with Articles 14 of the ECHR [10].

The case of St. George`s Healthcare NHS Trust v S the Court of Appeal established that a competent woman was permitted to refuse a caesarean section even if her decision would lead to the death of a 36 week old foetus. Judge L.J. reiterated that `the autonomy of each individual requires continuing protection, particularly when the motive for interfering is as readily understandable, and indeed too many would appear commendable`[17]. The law uses what is referred to as 'act/omission justification' as a basis for such an exception; abortion is an act to terminate the foetus and must meet the legal requirements of the Abortion Act. Whilst allowing a patient to refuse treatment that will ultimately lead to the termination of a healthy feotus, is merely an omission and as such the law does not require doctors to act to save the life of the foetus. The stricter time limitations regarding the termination of the embryo in research in comparison to the law concerning termination of the foetus, seems to award more right to the embryo in vitro than one implanted in the womb. An embryo bank may legally destroy any existing frozen embryos after 5 years, whilst the donation of embryos requires the client's consent [18]. This need for consent reflects a position of ownership that exemplifies the way in which the law constructs the embryo as a form of property [19]. The embryo construed thusly attaches the least value in terms of the rights afforded [20]. The principle of waste avoidance assumes that it is right to benefit people, if we can, and wrong to harm them. It states that with the opportunity to use resources for a beneficial purpose, when the alternative is that those resources are wasted, we have a powerful moral duty to avoid waste and do good instead. By this ethical carriage one could argue; if it is ethical to create embryos for gene therapy and babies through IVF treatment, it is then proper, to allow all embryos to grow into foetuses and harvest the tissue at that stage [12]. This type of edifice objectifies and ultimately reduces the embryo to a resource and a commodity [20]. Research which requires embryos evidently constructs them as commodity. Emphasis is on the benefits of research, and as such, is used to garner and galvanise support, with the stress on the obligation to progress. Regenerative medicine has the potential for good, nonetheless the cost of progress and the subsequent establishment of a coherent science should be suitably distinguished. Currently the law requires that persons must be sentient with the ability to rationalise and with the capacity for self-consciousness [12]. These qualities may not be possessed by the embryo in the early stages of development, but neither are these qualities shared by all persons. As such this lends doubt to the current classification of persons. Human beings should never be considered as merely a means to an end, as they are, above all, an end in themselves [21]. By this moral obligation slavery was abolished, and so we should be concerned as to the potential consequences of breaking such a basic ethical rule.

The 1967 Abortion Act is in clear need of revision. Current practice has been viewed as 'a mechanism for the devolution of legislative responsibility' [22]. The 1966 debate reflects a reluctance to engage with the difficult question of foetal status and women's sexual autonomy. Although the complete lack of concern for the foetus may ensure the right to reproductive autonomy, refusing to address the issue of foetal sanctity of life and failing to truly justify the current stance on the foetus, has a negative effect on abortion as a practice. The current scrutiny of the law has created uncertainty as to the future of abortion in regards to the willingness of young professionals to provide this service to women [23], as iterated by Kate Guthrie, clinical director; 'anyone thinking of becoming involved in abortion will be aware of the recent, very intense scrutiny of services, and I hope will not be put off by uncertainty in interpretation of the law '[24]. When dealing with the issue of foetal sanctity of life, safeguards need to be in place to reassure pro-abortion and women's rights groups that a repeal of the law is not on the agenda; rather an effort to address the current issues at play and to ensure the legal rules are adhered to.

'The biographical side of human life is as complicated and as critical to fathom as ... the biological side' [25] References 1. WHO (1946) WHO definition of Health. URL: http://www.who.int/about/definition/en/print.html Seen: 07/05/2012 2. Marmot, M. (2005) Social determinants of health inequalities. The Lancet, Vol.365, pp 1099-1104 3. Appleby, J. Deeming, C. (2001) Inverse Care Law Health Service Journal, Vol.111, 5760, pp37 4. Worldometers (2012) Real time world statistics. URL: http://www.worldometers.info/world-population/ Seen: 12/04/2012 5. Grubb, A (2003) Problems of Medical Law, In: Deakin, S, Johnston, A and Markesinis, B (2003) Markeseinis and Deakin's Tort Law, Clarendon Press, 5th Edition. Oxford p263 6. Syrett, K. (2007) Law, legitimacy and the rationing of health care; a contextual and comparative perspective. Cambridge University Press. Cambridge. UK. 7. Warnock M. (1985) A Question of Life: The Warnock Report on Human Fertilisation and Embryology. Basil Blackwell, Oxford. 8. Beltrami, A.P Cesselli, D. and Beltrami, C.A. (2009) Pluripotency rush! Molecular cues for pluripotency, genetic reprogramming of adult stem cells, and widely multipotent adult cells. Pharmacology & Therapeutics, Vol 124, pp 23-30 9. United for Human Right (2012) Universal declaration of human rights; Official Document. URL: http://www.humanrights.com/what-are-human-rights/universal-declaration-of-human-rights/preamble.html Seen: 07/05/2012 10. Council of Europe (2010) European Convention of Human Rights. URL: http://www.echr.coe.int/nr/rdonlyres/d5cc24a7-dc13-4318-b457-5c9014916d7a/0/englishanglais.pdf Seen: 07/05/2012 11. The Guardian (2005) Embryo battle goes to Europe. URL: http://www.mujernueva.org/articulos/articulop.phtml?se=4&ca=1&te=1&id=4557 Seen: 07/05/2012 12. Singer, P. A. And Viens, A. M. (2008) The Cambridge Textbook of Bioethics. Cambridge University Press. New York. 13. Scott. R. (2006) Choosing between Possible Lives: Legal and Ethical Issues in Preimplantation Genetic Diagnosis. Oxford J Legal Studies 26(1): 153-178 14. Abortion Act 1967 URL: http://www.legislation.gov.uk/ukpga/1967/87/contents Seen: 07/05/2012 15. Paton v BPAS [1979] QB 276; C v S [1987] 2 FLR 505 16. BBC (2001) Abortion Act 'discriminatory'. URL: http://news.bbc.co.uk/1/hi/health/1502827.stm Seen: 27/05/2012 17. Jackson, E. (2001) Abortion, Autonomy and Prenatal Diagnosis. Sage. URL:http://sls.sagepub.com/content/9/4/467.full.pdf Seen: 07/05/2012 18. HFEA (1990). Human Fertilisation and Embryology Act 1990URL: http://www.legislation.gov.uk/ukpga/1990/37/contents Seen: 07/05/2012 19. Jensen (2008). Abortion, Embryonic Stem Cell Research, and Waste. Theoretical Medicine and Bioethics 29 (1). 20. Fox M. (2000) 'Pre-Persons, Commodities or Cyborgs: The Legal Construction and Representation of the Embryo. Health Care Analysis Vol.8 pp171-188. 21. Emmanuel Kant i. Hill, T.E. (1980) Humanity as an End in Itself. The University of Chicago Press. Ethics Vol. 91, No. 1, pp. 84-99 22. Grear.A. (2004) The curate, a cleft palate and ideological closure in the Abortion Act 1967 - time to reconsider the relationship between doctors and the abortion decision. URL: http://www.eur.jura.uni-osnabrueck.de/Thyssen_Rspr_u_LitErg_ab_04_09_ges.pdf Seen 27/05/2012 23. BPAS (2010) Women. URL: http://www.bpas.org/bpaswoman Seen 27/05/2012 24. Quinn.B (2012) Anti-abortion climate `will deter new generation of doctors`. URL: http://www.guardian.co.uk/world/2012/apr/01/abortion-health Seen: 07/05/2012 25. Kenyon, G. Bohlmeijer, E. Randal. W.L. (2011) Storying Later Life; Issues, Investigations and Interventions in Narrative Gerontology. Oxford University Press, New York, USA.