CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ REFLECTIONS OF ETHICAL DEBATE IN THE INTERNATIONAL LAW REGULATION … value of a human being is ultimately derived from its personhood. This means that every human life is morally perfectly equal, be it a life of a scientist, a mother of five children, a dying old person or indeed an embryo. This approach is often connected with the concept of the sanctity of human life: every human life is sacred, i.e. exempted from the category of ordinary things which may be subjected to disposition. Human life is therefore not only a res extra commercium , a thing out of commerce, but rather a thing out of any disposition. 13 Empirical functionalism , on the other hand, makes personhood dependent on a sufficient degree of certain functions. 14 Most often, these determining functions have a cognitive character. In order to be a person, a human being must have a sufficient level of self-awareness, intelligence, ability to perceive pleasure and pain etc. 15 These capacities must be present in the person in every moment of her or his existence as a person: in the moment the human being loses required capacity, or before the human being acquires them, it is not a person. Many empirical functionalist theories differ in their personhood requirements, but they all agree that there are human beings which are not at the same time persons: these cases may include people with serious mental disabilities, people in a persistent vegetative state, or embryos. With regard to the personhood of embryos and foetuses, empirical functionalism may come to two types of conclusion. The unborn human being either becomes a person in a specific moment (i.e. the implantation around the 9 th day of embryogenesis, a certain degree of the brain development, the birth etc.), or it becomes a person gradually with its ever more developed functions. This second approach, quite popular in today’s bioethics, is called gradualism. 16 Apart from the deeper philosophical background, the debate between ontological personalism and empirical functionalism concentrates on several frequently discussed questions. These include, among other issues, the problem of initial uncertainty as to which cells of an early embryo will during the course of embryogenesis form the embryo itself and which will form extraembryonic structures (such as placenta); the importance of brain activity 2011, p. 75. VÁCHA, Marek, Problém osoby. In VÁCHA, Marek, KÖNIGOVÁ, Radana, MAURER, Miloš, Základy moderní lékařské etiky . Portál, Praha 2012, p. 52. 13 The sanctity of human life is often considered a religious, mainly Christian, concept. Meanwhile it is true that most Christians stand by the concept, we can also cite an interesting criticism by a Catholic bioethicist, David Albert Jones, according to whom the notion of sanctity of life primarily serves the opponents of the so-called pro-life (mainly anti-abortion and anti-euthanasia) views to mock them as irrational and based solely on religious dogmas. There also exist secular forms of the concept of sanctity of human life, even though they are not equally widespread and influential. See JONES, David Albert, An Unholy Mess: Why „The Sanctity of Life Principle“ Should be Jettisoned. The New Bioethics. (2016, Vol. 22, No. 3), p. 185-201. accessed 27 March 2017. With regard to the secular forms of the concept see BRAZIER, Margaret, CAVE, Emma, Medicine, Patients and the Law. 4 th edition. Penguin, London 2007, p. 59-60. 14 See ČERNÝ, David, LURIGOVÁ, Martina, Lidské embryo v perspektivně bioetiky. In ČERNÝ, David (eds.) Lidské embryo v perspektivě bioetiky. Wolters Kluwer, CEVRO Institut, Praha 2011, p. 75. 15 For example, one of the most influential bioethicists of these days, Peter Singer, defines a person as being aware of its own existence, its past and future, capable of desires for the future. See SINGER, Peter. Practical Ethics. 2 nd edition. Cambridge University Press, Cambridge 1993, p. 90. 16 See KUŘE, Josef. Lidské embryonální kmenové buňky: možnosti řešení morálního dilematu. In ČERNÝ, David, DOLEŽAL, Adam (eds.), Etické a právní aspekty výzkumu kmenových buněk. Ústav státu a práva AV ČR, Praha 2013, p. 33-34. GREASLEY, Kate, Arguments about Abortion. Personhood, Morality, and Law. Oxford University Press, Oxford 2017, p. 147-150. VÁCHA, Marek, Status lidského embrya. In VÁCHA, Marek, KÖNIGOVÁ, Radana, MAURER, Miloš, Základy moderní lékařské etiky . Portál, Praha 2012, p. 193-194.

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