CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ REFLECTIONS OF ETHICAL DEBATE IN THE INTERNATIONAL LAW REGULATION … Article 15 not only limits but also protects the freedom of scientific research. According to the Explanatory Report, scientific freedom is justified by both the theoretical ( “humanity’s right to knowledge” ) and practical ( “considerable progress” for “the health and well-being of patients” ) fruits of science. According to the Convention on Biomedicine, therefore, the rights of patients and research subject are based on categorical (however not illimitable) moral requirements, while the protection of science stems from the consequentialist approach. The research conducted on embryos in vitro is regulated by Article 18 which states that “[w]here the law allows research on embryos in vitro , it shall ensure adequate protection of the embryo“ and further prohibits the creation of human embryos for research purposes. The Explanatory Report does not comment on the provision apart from stressing that it “does not take a stand on the admissibility of the principle of research on in vitro embryos“ . 69 The very notion of “adequate protection of the embryo” in the situation of legality of embryo- destructive activities is highly controversial. 70 It is true that the authors of the Convention on Biomedicine let certain confusion blend into this provision. The protection of the embryo is probably motivated by the categorical imperative of protecting every human being’s dignity. However, this imperative is moderated by a consequentialist calculus consisting not so much in the benefits of embryo-research, but primarily in the need to provide the States with a wide space for decision in this very controversial area. The prohibition of the creation of human embryos for research purposes is further expanded in the Additional Protocol on the Prohibition of Cloning Human Beings. Article 1 of the Protocol prohibits “any intervention seeking to create a human being genetically identical to another human being”. However, this applies only to the “cloning of human beings” and not the “use of embryonic cells in cloning techniques” . 71 This actually means that while reproductive cloning is prohibited, therapeutic cloning can be regulated by national authorities without any Council of Europe interference. This is quite puzzling since the term “human beings” seems to be used in the meaning of a born person (or at least an unborn human life in certain higher stages of development), which is contrasting with the approach of the Convention on Biomedicine. Once again, we can see that the expressions used in international law documents are not very precise or consistent from the ethical view. Article 21 contains one of several illimitable provisions of the Convention on Biomedicine. It states that “the human body and its parts shall not, as such, give rise to financial gain“ . Since the gametes (that is, the sperm and oocyte) are naturally considered parts of the human body, this provision has a huge relevance for the in vitro creation of embryos. The prohibition does not cover compensation for the donor’s expenses incurred or loss of income, 72 as well as the 69 Article 116 of the Explanatory Report. 70 Lawyer and bioethicists Roberto Andorno remarks that „[ i]t is indeed difficult to see how such an ‚adequate protection‘ of embryos can be compatible with their use as research material“. 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. 142. accessed 8 April 2017. 71 Article 2 of the Explanatory Report to the Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the

Prohibition of Cloning Human Beings. 72 Article 132 of the Explanatory Report.

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