Functions and aims of the law
To answer the question posed in this article’s title, in the beginning we need to refer, if only synthetically, to the problems of functions and aims of the law. There is a common agreement that the law has to be based on clear and coherent, and certainly uncontradictory axiomatic assumptions. Law causing contradictory interpretations based on the same logical and substantial grounds, law too general or too casuistic cannot efficiently realize its role. There is a certain number of attributes that in the theory of law are referred to as constituting, so called, internal morality of the law, but there is no point in defining them now. The more important question concerns the functions of the law in reference to other normative systems that are not laws themselves, such as moral principles, requirements and prohibitions of certain ideologies or deontological norms. Questions regarding this relation, especially in an area as sensitive as bioethics, have distinguished substantiation in pluralistic and democratic society of our times.
A couple of basic reflections
First of all, there might be no question about the law being a normative set of autonomic character, functions and aims in reference to other normative systems. Law is not an automatic transmission of moral and ideological rules into legal demands and prohibitions.
Second, legal orders and prohibitions play a regulative role in external behavior of individuals, social groups and structures. They do not aim at internal perfection of an individual and are not based on maximalist assumptions. They deal with activity patterns preserved by experience and they do not set the required and ordered behavior on a level too difficult to reach. The law does not demand heroism or altruism from an individual, it is based on a postulate of maintaining a proper measure in determining demands and requirements. This is strictly connected to the functions of the law, which, while limiting the freedom of an individual towards others and towards the state, cannot or definitely should not invade the autonomy sphere of individuals more than it is necessary to protect the interests of others and the society as a whole. Nevertheless, the elements that constitute the autonomy and freedom sphere of an individual, the very sphere of self made choices might be subjected to evaluation from the perspective of other normative systems. What is clearly visible in democratic and pluralistic societies is the sense of measure, balance, avoiding extremes, aiming rather at arranging and organizing relations amongst people than at improving and perfecting them. The law in such a society has to be, by default, based on compromise and consensus, and those do avoid extremes and automatic, mechanical transfer of rules established in other normative orders. Legal demands or prohibitions, secured by specific sanctions, change the perspective and the ground of the judgment – the moral aspect of an obligation has a lesser meaning if it is realized under compulsion.
Third, law is a system, which concepts, constructs, definitions and axiom assumptions are not functioning in a social void and which are not a product either. Diffusion of various normative systems is unavoidable and it is a constant in the law development processes. The axiom foundations are, as a rule, defined outside the law, the same goes for the basic and axiomatic definitions that the law operates with and which most often than not are not defined by the law itself either. Therefore, while decoding the meaning of the law, one has to frequently refer to meanings in natural language, as well as to semantic meaning arising from the ideas shaped outside the law, for instance in ethics, philosophy and morality. This statement is important for reflection on bioethics. Emphasizing the independence of the law as a normative set of autonomic functions and aims in regard to other systems of rules, we have to accept that, in the same time, the clash of different interpretational variants based on the same rules and legal constructs is inevitable. Those clashes will be highly conditioned by the meanings given to terms used by the law, but not defined by it. There is no legal definition, for instance, of the term “human being”, it cannot be identified with the notion of person of the law or gender. Until very recently no one found it necessary to legally define the notion of motherhood or to normatively specify the moment of death of a person. This clash is somehow a part of the essence of rules governing bioethics.
Is it worthwhile to regulate bioethics?
Questions whether, all things considered, it is meaningful to regulate the matter of bioethics are not without logic even today, though bioethics has been a distinguished science and didactic discipline at numerous universities all over the world for tens of years now. The thesis may be well illustrated by the discussion, also still not finished in Poland, whether the law should intervene in a sphere of medically enhanced reproduction, especially with regard to in vitro insemination. Let us then examine, if only generally, the grounds, which the opponents of legal involvement in bioethics base their arguments on. One should be aware though that the argumentation is not at all homogeneous, as it often originates from dissimilar philosophical and ethical assumptions.
To begin with, the adversaries of the legal involvement in bioethics pinpoint that every attempt of legal regulation of those matters is, in essence, an unauthorized invasion into the sphere of personal freedom. Choices concerning physical integrity of a person, procreation or coping with pain have to be made freely, cannot be restricted by legal rules, which always show a specific tendency, susceptibility towards a normative “excess” of protecting a person at the expense of restricting personal autonomy.
Second, arguments are made that at least some bioethics matters should be placed exclusively in the spheres of morality, philosophy and ethics, and never in the sphere of the law. According to this assumption, law, being unauthorized, aims at absorbing areas that do not belong to it, i.e. procreation choices. From this perspective, the question of acceptability and methods of medically enhanced reproduction is not addressed to the law, but to individuals, who, basing on their own ethical sensibility, their own ideology and their own internally organized axiology, want to and have to make those choices by themselves. What concerns personal existence of an individual, his or her physical integrity and the spheres of deepest privacy, deciding about ones own physical integrity, even when deciding about life and death in cases of terminal sickness states connected with lingering suffering, should be free from legal interventions.
Third, and this will be a completely different, contradictory to abovementioned point of view, arguments are raised that, by entering completely new areas, such as those connected to procreation of human beings, law normatively petrifies what is morally unacceptable. The attitude towards in vitro insemination is a good example of such a situation. The opponents of legal involvement in bioethics consistently argue that even the most restrictive regulation of in vitro method will always express the legal approval of the method itself, and, consequently, the legal acceptance of embryo annihilation, which should not be permitted by any normative system.
Fourth, the inflexibility of legal regulation makes it inadequate for finding, in each specific case separately, in casu proper criterions and resolutions of the situation. There are no universal solutions to all situations, so it would be better to solve them separately, step by step, by evolutionary judicial law and opinions of bioethics commissions.
Fifth, for proper legal qualification of a specific case, one does not need meticulous technical solutions. General basic rules, arising from regulations placed highly in legal hierarchy, i.e. in constitution or international conventions, such as protection of dignity, life, freedom and privacy of each individual, should be regarded as sufficient for this purpose.
It’s proper to take a closer look at these arguments.
Ad 1/ Undoubtedly, legal rules not only set in order the regulated issues, but also create restrictions and barriers, which may restrain the freedom of individuals’ behavior. In the same time one cannot fail to notice that freedom of various activities of one category of legal subjects sometimes may be obtained only by restricting the sovereignty of actions of other entities. A researcher experimenting in the mane of freedom and science development may very easily enter the sphere of autonomy, privacy and free will of people subjected to the experiments. In a situation of a complete legal vacuum, a parent taking any decision about medically aided procreation may subject the baby to uncertainty, lack of legal stability and impossibility of creating authentic family bounds. In both of these cases, any legally based restrictions of personal freedoms, should aim at balancing the interests and rights of an individual. In the first case the interests and rights of the researcher and the person subjected to an experiment, in the second on of the parent and the baby. By decreasing the freedom of some individuals, the law increases the freedom of others. Consequently, the argumentation made for restraining the legal involvement in bioethics is always based on unilateral perception of relations utilizing modern technology; it’s a perspective from a point of view of a direct beneficiary.
Ad 2/ The thesis that legal intervention in analyzed cases is an unauthorized appropriation of spheres belonging to morality, philosophy and ethics, leading to replacing an ethical choice by a legal choice, is not convincing either. One has to remember that, while operating in the same areas, the law and morality have different functions and aim at different goals (see remarks above). Points of contact between the law and morality appear in various legal segments, starting from penal law, through contract law to family law. There are no reasons for stating that just a moral aspect of a case itself could be a rationale for prohibiting a legal intervention. It would lead us to an unjustifiable and absurd conclusion that all matters connected to, for instance, integrality and affecting privacy of individuals should be automatically subject to deregulation. Some dispositions of an individual, i.e. his or hers own life and health, due to the highest rank of values requiring protection, have always been subjected to legal control. Law, while not imitating moral rules, is always guided by clear axiology and, within this axiology, a specific hierarchy of values.
Ad 3/ Consent for introducing a legal regulation not corresponding directly with specific moral or religious convictions does not mean renouncement of those convictions. Moreover, it should not lead to petrifaction of morally reprehensible behavior just because it is legally allowed. It would be only possible in case of a complete discrepancy of the law’s functions and morality. The law does not intervene in order to eliminate moral conflicts. It intervenes to create proper frames for social relations, to stabilize the situation of specific individuals and to prevent potential conflicts. The law should not force one to make choices opposing the basic convictions of the addressees of legal norms but sometimes it also has to restrain itself from action and tolerate behaviors that are not responding to dominant moral or ideological point of view.
The postulate of legal intervention in the sphere of in vitro inception is a very good exemplification of this thesis. Legal regulations, without deciding at this point about their direction, establishing the status of an embryo, allowed methods of dealing with frozen embryos, premises allowing for application of the method, as well as filial aspects – for persons guided by catholic ideology – should not create a basis for taking ethical choices regarding the method, neither should they influence the establishment of a proper moral norm that should be regarded while taking the choice. By establishing the rules in case the method is being used, law does not eliminate moral dilemmas, but creates a specific axiological minimum, and allows determining the legal situation of the individuals that decide to employ the method. It does not pose any legal duty of applying the method; neither does it repeal validity of evaluations formulated by other normative orders (moral or religious), which may be based on fundamentally different axiological principles. Finally, one has to observe that silence of the law concerning certain problems does not equal with its axiological indifference toward the matters. The lack of any regulation regarding in vitro inception in the system of Polish law results in much broader scope of arbitrariness and uncertainty connected to employing this method, and, consequently, in uncertainty of the law and interests of individuals entangled in specific situations caused by it, than in countries that have been applying completely different approach for many years now – detailed legal regulation. Such a situation leads further to creation and development of behavior pathology, and, as a result, to more negative effects than a regulation trial.
Ad 4/ The situational application of the law in a changing way and without any clear initial rules is not a good solution, leading to arbitrariness and uncertainty. There are no reasons for modern society to give up its right to make decisions about the means of shaping the basic rules of conduct, especially in cases of such a heavy ethical sensibility and social importance, neither for giving up its competencies in this matter for the benefit of courts or other adjudicative authorities. The functioning of modern biotechnology, conducting experiments, application of medically enhanced inception methods, the boundaries of genetic therapy, and so forth, cannot be based on rules determined ex post or on individualized ethical intuitions and precognitions of future rulings. The most transparent rules are needed. Legal systems in which precedent and case law are much more important and in which normative rules in many spheres of bioethics were established nevertheless (comp. Great Britain, USA, Australia) seem to be really good examples confirming this standpoint.
Ad 5/ The argumentation based on the assumption that rules being part of the fundamental principles of system (dignity, protection of life) are sufficient for solving bioethics’ dilemmas, contains within the same level of arbitrariness as the reasoning described above (situational approach). It is illustrated, for instance, by the uncertainty and multitude of interpretational directions appearing on the basis of the concept of dignity protection in the systems of all European countries. General rules and basic values of system should play a vital role in prioritizing the directions of research, and, most of all, in determination of impassable boundaries for activities connected to application of modern biotechnology. Nevertheless, they are more an operative tool in its negative aspect (non possumus), determining the minimal level of legal protection, than in the positive aspect, in which one aims to determine the detailed legal regulations in specific fields of bioethics.
To conclude this synthetic overview of legal regulation of bioethics dispute, one may agree that the rationale for legal intervention certainly prevails. In modern world, law cannot remain silent about the most sensitive matters concerning humans, neither today nor in view of future generations. Nonetheless, admitting that the law should interfere does not yet give the answer about in what ways it should do so and what should be the scope of legal regulations.
How to regulate bioethics?
The role of Bioethics Committees – the role of Parliament
There should be no doubt that, while creating laws, there is no way to omit the stage of public debate, identification’s problems, detection of basic areas of conflicts and outlining the basic axiological options. This should be the first aim of National Ethical Committees – pluralistic institutions representing various professions, as well as ideological and philosophical options. In the same time, one should not forget that a position adopted by even the most representative group of authorities of legal sciences, philosophy, ethics or morality cannot replace the regular procedures of creating the laws within proper democratic mechanisms, i.e. specified by the constitutional system of every country. The Committee is not some sort of pre-parliamentary legislature preparing preliminary normative acts. Its main role is to decide if the law should intervene in a specific area of bioethics in the first place, and, if yes, what exactly should be the scope of the regulation. Than again, it is not its role to authoritatively decide on the essence of the future law. A declaration that in some areas there is still not enough data to make a regulation attempt (which, on some stage, was the case of some methods of enhanced procreation or genetic therapy techniques) is as important a statement as declaring that the matter is mature enough to be subjected to proper legislative decisions. Sometimes making a statement, formulating an opinion or initializing a public debate is enough. Nevertheless, creating projects of bills and passing the laws should remain a competence of public authorities.
Between the axiological minimum and maximum. Pragmatism of the law.
In European legal culture there are many rules, which derive from the Christian culture, and which are commonly agreed on. Let us just mention the protection of dignity of every individual, the right to live, protection of autonomy and privacy or the freedom of scientific research. Nevertheless, as I mentioned before, these rules are expressed on such a high level of abstractness, that it is at any rate difficult to, basing on them, create a fully coherent interpretation assuming existence of analogous or at least similar meanings of particular ideas and basic values. In this situation, two approaches towards the future law appear, at least theoretically. The first approach assumes axiological maximalism that expresses itself in aspiration of covering all regulated spheres by coherent and homogenous validating assumptions and achieving, already in the first stage, a full consensus regarding the substance of ideas and basic values. According to this approach, the law cannot make any concessions in face of basic values. Consequently, if a selected starting point (for instance connected to a definition of a person and its legal status) is not commonly accepted, there is no sense in taking any further steps, as it would be an action abstracting from the established axiological foundation. This approach does not leave a place for compromise or making concessions. Obviously, in a pluralistic society, in which law is created within democratic procedures that accept, by default, a variety of standpoints, such an approach only occasionally may lead to a desired result, that is to passing regulations, if only framework or partial, also in areas which are not, as a rule, entangled in a fundamental axiological conflict. While analyzing the situation in Poland, one may easily come to a conclusion that it basically represents this approach towards the bioethics issues. Since we cannot achieve a basic agreement in the fundamental and central to bioethical discourse matter of the status of germ, embryo and human foetus, any further discussion of these matters does not make sense. As a consequence, the legal vacuum in bioethics in Poland is the highest among European countries, with all the negative results of this situation – the disturbing grey sphere of practices and actions that would not be accepted nor tolerated today in most of the countries which are able to achieve a minimal consensus in the matter. For these reasons, in Polish legal system there are still no regulations regarding even such legal matters as the mechanisms of establishing the parenthood of children conceived by application of various methods of medically enhanced procreation, child’s right to, so called, genetic identity, the range of acceptable dispositions of human gametes or the issues arising in the background of prenatal diagnostics.
The second possible approach, definitely more common in legal and bioethics discourse in European countries, has a pragmatic character, accenting the organizing functions of the law. While basing on a necessary axiological minimum, it does not aim at definite settlement of moral problems. Consequently, such an approach enables legal regulating of some areas of bioethics even if the final agreement and full consensus in some basic matters have not been reached. In a debate, particularly lively nowadays in Poland, clear questions appear, especially important for people being against this method of procreation. Is it better to remain on a position consequently negating any legal intervention, since we cannot achieve common position on legal and moral status of an embryo at the starting point? Or the approach accepting the creation of specific legal frames in this area is the right one? Could there be a proper discourse about the ways of regulating these matters between supporter of a catholic ideology and a lay pragmatic? Is there any space for compromise and consensus here?
It seems such a space exists, if only the expectations of both sides meet in a point in which it is being decided about the future shape of a legal norm addressed to individuals of various philosophical and ideological preferences and not about the shape of a moral norm, which still, nonetheless, has to be obeyed within individually made choices by those admitting to a certain ideology.
One cannot question the fact that, on the level of the law’s axiology, not maximalistic but always searching for balance, an agreement in various important matters will be possible even despite different initial position accepted by both sides. Law, being guided by its own system of assessment and criterions, is not at all axiologically indifferent and deprived of universal values, arising from the common root of our culture and tradition, on the level of which reaching a consensus becomes real and possible. It behooves us to notice the possibility of discussion on various matters, such as: if the in vitro method should be available on a demand or rather as a palliative of infertility treatment or a way for procreation for people affected by a serious genetic risk? Should we apply the method for single, unmarried people or only in case of unanimous request of both spouses? Should the “donation” of embryos, in case of creation of so called spare embryos, be allowed? Is the storage of embryos allowed? If yes, for how long should they be stored? Is experimenting on embryos, in any way, acceptable? How should the law react to the cases of supplementary motherhood, which is a real problem now in Poland? What should be the criteria of establishing legal parenthood – genetic, biological (for example maternity of a women giving birth to a child or maternity of the ovocyte donor)? Should, and if yes, in what way, the potential responsibility of medical personnel regarding the proper application of in vitro method be established? Is the child entitled to the knowledge about the method of conception and the information about genetic parents? There are many similar questions, and, in the current situation in Poland where in vitro interventions are made at least in couple of cases each year, they all remain without an answer, or, at any rate, without an unambiguous answer because of so many possible interpretations of general rules.
An agreement even between supporters of basically different standpoints regarding the status of an embryo seems possible in matters such as the ban on chimera creation (the cross-species breeding of gametes) or the ban on commercialization of any procreation practices. The respect for every aspect of human life remains in this case a common, unquestionable axiological link.
Consequently, by resigning of maximalistic postulates, we may frequently achieve positive results, moving the level of legal protection of the common values much higher than in the case of fundamental, principal refusal of any discussion, based on the idea: everything or nothing.
A really good example of this thesis is, for instance, the problem of so called wrongful life and wrongful birth claims, which, in recent years, appeared also in Polish court practice. Without a proper legislative intervention the problem cannot be solved, in any of possible cases. The refusal of adjudging compensation for children born with serious genetic defects (and their parents), motivated in the name of the principal idea (well established and widely presented in legal and ethical literature) that the life of each person is a positive value and cannot be regarded as a damage, will not solve the dilemma. And it is strictly connected to the question whether there are any other social and legal mechanisms, apart form adjudging the compensation, that would allow for granting just and real aid to people who are often in a dramatic situation, left alone and without any chance for gaining some outside assistance. The discussion about these matters is being held almost exclusively on the level of principia and already existing legal constructs, whereas what is really needed is a change of attitude, and creating alternative solutions that would allow abandoning a specific legal trap, in which those families find themselves nowadays. The law, intervening by formulating an explicit ban on this kind of claims, which lead to actual stigmatization of disabled people, in the same time, should therefore create public compensating mechanisms and social aid for families of kids afflicted with genetic defects. The differences concerning abortion, its premises and favorable circumstances should not be obstacles for working out a common and based on a consensus agreement on this matter.
As a conclusion of this point one has to pinpoint that the area of discussion must be defiantly broadened and include all the areas that are often not being reached today. The range of common debate as well as the possibilities of agreement is much wider than it is commonly thought.
Framework or casuistic law
The question about what the law should be like is often connected with a dilemma of how detailed it should be, how wide an area should it leave for decisions made individually and while taking into account all circumstances appearing in casu. As we pointed out above, bioethics cannot be based purely on case law, as it threatens with too high arbitrariness and uncertainty of judgments. Nevertheless, there is still quite a distance between the approach assuming regulation of only the basic matters and the approach advocating the regulation of all the issues in detailed and holistic manner.
Restrained legal intervention
It seems that the scope of legal regulations should be also moderated– they should avoid a detailed control of all aspects appearing in the area of applying biotechnology and the patient-doctor relations. There are at least two reasons supporting the restrained legal intervention.
Firstly, law that is too detailed becomes inoperative, above all looses its adaptability and flexibility, the inseparable characteristics of a good law that enables it to adapt to changing circumstances and situations without the necessity for further legal intervention. Consequently, law has to include some amount of so called general clauses, indefinite phrases that allow for finding a just and balanced verdict in individual cases. There has to be enough space left for the partners of medical relations, which may be well illustrated by terminal care of a patient. It seems that precise legal solutions defining in which cases the treatment enters the phase of so called aggressive or persistent treatment, would not bring good results from the patient and doctor’s point of view and are not to be accepted. Any detailed legal regulation would not free the doctors from the burden of personal ethical responsibility for decisions taken. Art 9 of Bioethics Convention, stating that in terminal phase the doctors should take into account (hence it is not forejudged) the wishes relating to a medical intervention previously expressed by a patient when he or she was still in a state to express his or her wishes. General character of the law may be complemented by so called remanding norms, enclosed in deontological codes.
Obviously, they cannot apparently contradict any of statutory laws. More and more often it appears as well that applying rigid age criteria and legal capacity condition for determining effective informed consent should be replaced by more open and more elastic criteria that take into account perceptive abilities of the patient, for instant impubes in casu. Law that leaves space for free decision making by the participants of specific relations has to, in the same time, foresee the mechanisms of reaching the proper and and in given conditions, the best solution. Such a role should be played by bioethics commissions, creation of which by every hospital unit should be treated as a postulate. Theses commissions should not be as well limited, as it is taking place now, only to expressing their opinion about projects of clinical research. Bioethics commissions should always give opinion about lists of patients awaiting so called deficit medical services.
Secondly, the development of medical biotechnology is nowadays so rapid, that there is no means, neither technical nor intellectual, of the law keeping the pace. Too detailed and casuistic law might block the progress and opportunities for introducing new methods of therapy and diagnostics. Consequently, for instance statutory petrifaction of all methods that are allowed in special or unusual cases is not possible. This is, among others, the reason why it is necessary to create National Bioethics Councils, which will formulate guidelines and present a standpoint in all crucial questions that law does not give clear answers to, and for which legal intervention is yet premature.
Conclusions
The main conclusion arising from above reflections is that the initial point for all discussions about what kind of the law we do need should be firstly deciding how to create the laws, what the organizational mechanisms and the method should be, and what functions in regard to other normative systems it should play in the area of ethics. Only acknowledging the specifics of legal approach, its goals and functions, will allow for achieving consensus in a pluralistic, democratic society.
Translation: Patrycja Grunert
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