CYIL vol. 11 (2020)

MARTIN ŠOLC CYIL 11 (2020) research reflects the words of American physician Henry K. Beecher according to whom a clinical study is ethical or unethical from its start, the value of its scientific contribution not being relevant in this regard 77 . Unlike most other areas of applied ethics, medical research ethics is primarily guided by the deontological (or categorical) ethical approach. 78 3.1 The strictest test? Research on minors from the perspective of Kantian ethics The term deontology denotes ethical theories that are based on agents’ duties. These theories judge actions not by their consequences, but rather by their inherent quality. In other words, they consider actions being morally good or wrong in themselves, regardless of their consequences. 79 The philosophy of Immanuel Kant, or Kantianism, is considered to be central to deontological theories. 80 It might be reasonably assumed that from the great normative ethical theories, Kantianism as a strictly deontological approach based on the dignity of an irreplaceable individual 81 is the one least likely to easily justify research on children. For this reason, we will put the legal principles of this research, as we have defined them above, to the test of Kantian ethics. If an agent strives to act morally under Kantianism, her or his actions must correspond to the relevant duties, but they must also be motivated by these duties – the agent must act for the sake of the duty 82 . It would, therefore, be necessary to evaluate the individual motivations of each researcher. If we evaluate legal rules from the Kantian perspective, we actually think of these rules as if they were the motivations of an individual. Understanding that for this and other reasons, a truly complex Kantian analysis of relevant legal rules would far exceed the possibilities of this paper, we simply strive to outline the shape and probable outcomes of such analysis. In choosing their actions, people are navigated by maxims, i.e. the practical principles on which the agent acts 83 (Kant calls them subjective principles of volition 84 ). In our context, basic maxims might be formulated in a way similar to this: “you can carry out a research on children”, or “you should participate in medical research when given the opportunity”. To assess whether a maxim is good or wrong, it is tested against a categorical imperative. Since Kant defined several formulations of this imperative, a maxim is good if and only if it is in 77 As cited (after translation to the Czech language) in MUNZAROVÁ, Marta. Lékařský výzkum a etika [Medical Research and Ethics]. Grada Publishing, Praha 2005, p. 48. 78 See for example ŠOLC, Martin. Opening the Doors for Designer Babies? A Tension between the Geneticists and the Convention on Biomedicine. In ŠTURMA, Pavel (ed.). Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 10. Česká společnost pro mezinárodní právo, Praha 2019, p. 378. 79 For an overview of deontological ethical approaches, see Deontological Ethics. Stanford Encyclopedia of Philosophy. (17 October 2016.) accessed 9 June 2020. 80 See ibid. 81 According to Kant, “[i]n the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent, what on the other hand is raised above all price and therefore admits of no equivalent has a dignity” . KANT, Immanuel. Groundwork of the Metaphysics of Morals. Cambridge University Press, Cambridge 1997, p. 42. 82 See this explained in KORSGAARD, Christine M. Introduction. In KANT, Immanuel. Groundwork of the Metaphysics of Morals. Cambridge University Press, Cambridge 1997, pp. xi-xv. 83 See ibid., p. xiv. 84 KANT, Immanuel. Groundwork of the Metaphysics of Morals. Cambridge University Press, Cambridge 1997, p. 14.

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