CYIL vol. 8 (2017)

MARTIN ŠOLC CYIL 8 ȍ2017Ȏ interesting that the term “human being” used in the name of the Convention on Biomedicine was chosen because of its general character. 63 Article 1 of the Convention on Biomedicine starts with the following obligation: “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.” 64 There is a very interesting distinction between “all human beings” 65 whose dignity and identity are protected and “everyone” as subjects of rights and freedoms. The term “everyone” here apparently means all persons . This expression was indeed chosen because of the lack of European consensus on the legal and moral status of human embryos. 66 It is intentionally unclear whether the content of both used terms is identical or not, 67 so the States have a wide margin of appreciation regarding the legal status of unborn human life. Article 2 states that “[t]he interests and welfare of the human being shall prevail over the sole interest of society or science“ . All Articles of the Convention on Biomedicine must be interpreted in the light of this principle. 68 Since the term “human being” is used, the principle could also apply to embryos. However, it is very doubtful how such interpretation of the provision can be reconciled with the legality of embryo-destructive research. The text of the provision should be rather understood in connection with Article 1, which means that it guarantees certain growing protection of embryos and foetuses. This seems to be an apt example of the gradualist approach. Certain categorical, yet limitable, requirements are contained in Article 4 (professional standards of any intervention in the health field) and Article 5 (informed consent), or Article 22 (information and consent procedures necessary for the removal of any part of a human body). The general rule of scientific research is expressed in Article 15: “Scientific research in the field of biology and medicine shall be carried out freely, subject to the provisions of this Convention and the other legal provisions ensuring the protection of the human being.” This provision is connected with the categorical principles of the protection of human dignity and identity (Article 1) and the priority of individual rights over scientific research (Article 2). However, 63 Article 9 of the Explanatory Report. 64 Even though it is not directly related to the topic of this paper, the question of discrimination in a medical context is very complex and interesting, ranging from unjust distribution of care among groups of patients to very specific problems, e.g. the question of granting wrongful birth claims leaving unwanted children living with the knowledge that their parents were literally compensated for their existence. See ŠUSTEK, Petr, ŠOLC, Martin, Court Decisions in Wrongful Birth Cases As Possible Discrimination Against the Child. Espaço Jurídico Journal of Law [EJJL]. 2017, Vol. 18, No. 1, p. 31-48. accessed 17 May 2017. 65 According to Article 19 of the Explanatory Report, a human being comes into existence as soon as life begins. A co-author of the draft of the Convention on Biomedicine, Johanna Kits Nieuwenkamp, states that a human being is created in the moment of conception, while a human person equates to a born person. See ANDORNO, Roberto, The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law. Journal of International Biotechnology Law. (De Gruyter Recht, New York 2005, Vol. 2, No. 4), p. 37. accessed 8 April 2017.

66 Ibid ., p. 137. 67 Ibid ., p. 137. 68 Article 22 of the Explanatory Report.

440