CYIL vol. 8 (2017)

MARTIN ŠOLC CYIL 8 ȍ2017Ȏ question of patents. 73 The provision represents one of applications of the principle of human dignity. 74 It reflects the worldwide consensus on the moral inadmissibility of commodification of human tissues, which is motivated by both a categorical imperative on sustaining a certain conception of human dignity and a consequentialist need for the prevention of exploitation of the planet’s poorest people. 75,76 We should also remind the reader that certain principles of biomedical research ethics were elaborated in more detail in the Additional Protocol concerning Biomedical Research. We will not, however, analyse this Protocol any further, not only because of the limited length of the paper, but also due to a relatively small number of ratifying States. Conclusion From all types of very promising medical research conducted on stem cells, embryonic stem cell research is by far the most controversial, since it requires destruction of human embryos. The ethical debate surrounding embryo-destructive research can be – in a very simplifying manner – understood as the discussion on two fundamental questions. The first one is what is the moral status of the human embryo, or, more specifically, whether there can be a difference between a human being and a human person. If the answer is yes, the empirical functionalism is right; therefore, it is for example possible to argue that a human embryo and foetus becomes a human person gradually (which is the position of gradualism). If the answer is no, the ontological personalism is right and the destruction of embryos is a killing of innocent persons. However, it can be argued that this killing might be justified by the great benefits it would bring to many other people. This is the position of consequentialist moral reasoning, according to which any act is good or wrong depending on its consequences. This approach faces strong criticism from the supporters of categorical moral reasoning who state that actions are inherently good or wrong and therefore the killing of the innocent can never be justified. The international law documents often use the ethical terms considerably vaguely and differ in their meaning. It could lead to an impression that they generally do not reflect the ethical discussion with much precision. Furthermore, it may easily seem that the authors of the documents were mostly unaware of ethical details of the regulated matter, or that they did not consider them particularly useful for legal discourse. The documents typically differentiate the terms “everyone” (or “person” ) and “human being” , but the meaning of these terms is not defined, and therefore it is left for the States to decide whether they would rather take an ontological personalist or empirical functionalist approach. This is particularly evident in the Council of Europe conventions (the European Convention on Human Rights and the 75 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. 142. accessed 8 April 2017. 76 A minority of authors controversially argue that the principle of non-compensation for human body parts should be abandoned because of its paternalistic nature and limiting effect on economic options of the poor. See RICHARDS, Janet Radcliffe, The Ethics of Transplants: Why Careless Thought Costs Lives. Oxford University Press, New York 2012. 73 Article 134 of the Explanatory Report. 74 Article 131 of the Explanatory Report.

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