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LAW AND DEONTOLOGY IN BIOETHICS:
LOOKING FOR A NECESSARY BALANCE
Dr TAKIS C. VIDALIS *
Introduction
It is more than a quarter of a century that we have started to discuss
impressive developments in biomedicine, from the time of the first IVF
baby, Louise Brown, to the mapping of human genome and the stem cell
research. We have started to express fascinating hopes for our future
life, not simply for improving our health but, for some, even for improving
our own species. At the same time we point out horrific risks, from
the risk of dominance of genetic discrimination among people to the
risk of cloned human "copies"' creation or even the risk of
reappearance of the Nazi's genetic experiments.
Certainly, "bioethics" is now a trendy word, representing,
nonetheless, this contradictory reaction when we face the new technological
developments. But, furthermore, bioethics is also a necessary base for
thinking about their regulation.
Regulating biomedicine, in particular, is nothing but adapting scientific
progress to the ethical standards of a given society in a given time,
and thus promoting a socially accepted progress. For some scientists,
this aim means, perhaps, a barrier to the freedom of research. To them,
scientific research should face only the "naked" nature and
its secrets and not merely the society with its usually conservative
(if not reactionary) demands. Yet for the most part of scientists and
of ordinary people as well, to conform science to social values is the
best way for supporting freedom of research, either by strengthening
the social acceptance of various research policies, or simply by attracting
funds, as far as research meets real social needs.
If we admit this connection between science and society, we have to
address a more delicate question. What kind of regulation do we mean?
This question is critical in biomedicine. As its object is nothing less
than the human life itself, namely a notion rich of moral attributes,
deriving from the most different cultures, a coexistence of regulatory
demands and, frequently, the conflict between rules of conduct coming
from different regulatory orders should not be surprising. The protection
and respect of human life is the privileged object not only of the modern
law1, but also of ethical rules of conduct, that compose what we call
medical deontology; that is to say, medical etiquette.
Moreover, the protection and respect of human life occupies a central
position in our personal religious or philosophical beliefs, in our
inner moral world.
In this paper, I will try to explore the field of application of law
and deontology in biomedicine. First, I distinguish the characteristics
of each regulatory order in general (I). I analyze then three different
examples, which seem to be illustrative for the mutual impact of both
kinds of rules (II). In the end, I propose a new role for the law in
biomedicine that takes into account the vital importance of deontology
and can guarantee a certain efficacy of regulation in this complex sector
(III).
I. Law and deontology: a 'parallel' regulation
1. Biomedicine and law
In the late of 1980's the first laws in biomedicine determined a separate
sector of the modern law. Starting from the national legislation on
assisted reproduction in various countries (Spain2, UK3, France4, some
States in the US) including the strict German Act on the Embryo Protection5,
one decade later the two major international documents in that field
were adopted. They are the Universal Declaration on Human Rights and
Human Genome of UNESCO (1997), an important document of soft-law, and
the Council of Europe's Convention on Human Rights and Biomedicine (Oviedo
Convention, 1997), a legally binding document in Europe6.
Meanwhile, the elaboration of detailed legal rules and documents on
the protection of personal data in Europe7 and elsewhere, due to the
rapid progress on informatics, met new regulatory needs in biomedicine.
The data-protection emerging issues concern the collection and handling
of genetic data, and the last years became more urgent, due to the expected
applications of the famous human genome mapping project and the establishment
of the first population bio-banks in Iceland, the UK, and Estonia. In
the last years, finally, we have legislation initiatives for regulating
biomedical research, in the Council of Europe and the E.U. as well,
stemming from an increasing interest of scientists and pharmaceutical
companies in developing new drugs and therapies on the basis of the
genome study8.
The common characteristic of all these laws is that they intend to
regulate new biomedical techniques, based mostly on biological discoveries
especially in human genetics. However we can suppose that the legal
approach in biomedicine is rooted in older laws, already existed in
the '80's, concerning the regulation of transplantations or even of
abortion. Perhaps, this wider determination of biomedical law is more
accurate, since it covers all deliberate medical interventions in the
human body, able to modify in a serious manner its physical condition.
As in any other field, the legal regulation in biomedicine imposes
coercive patterns of social conduct. Sometimes that requires sanctions
provided for those who infringe these patterns. Yet we must consider
that, for achieving its scopes, the law uses not only strict orders
or prohibitions, but also 'permissive' rules, attributing rights to
interested persons. By these rules, the law not only accepts, but moreover
promotes, a certain social behavior, while discourages a contrary one,
which, thus, is getting socially marginalized. For instance, we have
laws permitting IVF under certain conditions, such as the infertility
of the couple, or the interested woman's age9. Even if we suppose that
there are no sanctions for someone who doesn't want to follow their
pattern, it would be difficult for him to proceed alternatively in IVF,
that is, to find a clinic, a doctor etc ensuring a safe, though unlawful
process.
Even using a variety of means, the law is not always effective. Under
certain conditions, the legal regulation cannot achieve what it promises,
simply because of its coercive nature. Coercive rules require obedience
despite a possible disagreement of their recipient. In a way, such rules
'cover' the variety of personal stances with regard to particular issues,
since their scope is, by nature, to ensure uniform behavior in social
life. In that context, personal disagreement should be eliminated by
legal regulation, which, for that purpose, needs a mechanism of monitoring
the implementation of rules.
Yet, for two reasons, this is a problematic solution in biomedicine.
First, because the ongoing progress in biomedical research is universal,
so any national control is eventually becoming insufficient and, second,
because research is developing at the same time rapidly and not in public,
so it is practically impossible for any official to prevent its results.
To explain this problem with examples, suppose that a national legislation
prohibits reproductive cloning and threatens those violating its rules
with strict criminal sanctions. A biologist wanting to proceed in such
an experiment might either do that in a foreign country with no such
legislation or to risk performing the experiment, "protected"
by the privacy of his/hers laboratory. In the first case, obviously,
the national law remains unable to stop the experiment, in the second
one, if we suppose that the experiment is eventually successful, the
baby-clone would be still present, even though the scientist would be
arrested and sent to the prison. In both cases the law is proved ineffective.
2. Deontology/Ethics: The ethical dimension of regulation
Long time before the emergence of biomedical law, physicians and medical
professionals had elaborated and accepted ethical rules of conduct,
governing the exercise of medicine. Beginning with the famous Hippocratic
oath, the first known document containing such rules, medical deontology
became an inseparable part of medical studies and medical practice.
Today we can find international documents on medical deontology, such
as the Helsinki Declaration of the W.H.O. or the more recent code of
E.S.H.R.E.10 on assisted reproduction, and national codes of medical
associations as well.
The rules of medical deontology have a double scope: First, to ensure
the social respect of medical profession as collective activity, and
second to protect the doctor's personal morality in exercising medical practice. This
latter scope is critical. Since exercising medicine means necessarily
intervening in the physical condition of human beings, doctors often
face difficult ethical problems with respect to the welfare or to the
dignity of patients. In fact, the solutions of such problems are lying
into the sphere of conscience and of personal moral convictions, in
the sense that they can deeply affect the personality and even the future
life of the doctor. Therefore, doctors should make such serious choices
in conditions of absolute personal freedom: These conditions, precisely,
should be guaranteed by rules of medical deontology.
We can use an example for describing this role of deontology. Under
conditions of extreme pressure, in particular, when addressing a matter
of 'life or death' for the person undergoing medical treatment, and
the doctor in charge should make an intervention of a high risk, he/she
can invoke the deontological rule providing that 'doctors should make
all efforts for preserving human life' as an ultimate argument. This
argument, eventually, "legitimate" the doctor's personal opinion
about the therapy before the patient's relatives or friends, or even
before his/hers colleagues, which may adopt different methods.
Yet, since the rules of deontology should cover every reasonable personal
moral stance in particular issues of medical practice, they cannot be
detailed. Their content is necessarily quite vague, needing, usually,
to be specified in every particular case, in which such a rule is supposed
to be relevant. Obviously, this characteristic of rules' vagueness risks
to weaken the regulatory force of deontology. Nevertheless, equally
to the law, deontology is also a coercive order of rules. Although its
sanctions do not restraint 'physically' their recipient, they have unpleasant
effects, sometimes worse than those of legal sanctions: In fact, sanctions
such as professional defamation or, even more, the conscience remorse
are in some cases more painful for most individuals than, for example,
an imprisonment or a fine.
3. The crossroad
In most cases legal rules of biomedicine have similar content to those
of medical deontology. Many principles, such as the principle of informed
consent of persons undergoing medical treatment, the inviolability of
medical confidentiality, the prohibition of commercialization of the
human body and its parts, the recognition and protection of the patients'
rights, the respect of the deceased person's body during the process
of transplantation, the right of individuals to refuse information about
their personal condition of health (the right 'not to know') are common
in both orders. We can find these principles explicitly mentioned in
the most of the aforementioned legal or deontological documents.
Certainly, biomedicine is not the only field that we observe such similarities
in content. Commercial law, or the law of media, among others, reflect
extensively professional ethics governing the relevant social activities.
A reasonable explanation for that is that legislators need to repeat
rules accepted for a long time by those involved in a particular professional
practice, in order to ensure the efficacy of the legal provisions regulating
the concrete area. Yet this fact creates a problem: If the legislator
just repeats already known and accepted rules of conduct, what is the
use of legislating? Is there any added value to consider?
However the more serious problem is an opposite one. How can we deal
with cases of conflict between the content of a particular legal rule
and the personal beliefs of a doctor, which are based on his/hers freedom,
acknowledged by rules of deontology? A plain response on this is that
the doctor should obey the law even when that violates dictates of his/hers
conscience. But we must remember what it is said before about the question
of biomedical law's efficacy, which is not certain, due to the nature
of biomedical practice. Given that, the 'plain' response is eventually
a false one: Simply because a mode of conduct is described in a legal
text, even backed by sanctions, that is not enough to guarantee 'obedience',
that is, effective regulation of the concrete social activity. We need
here something more, namely an effort to persuade individuals about
the necessity of rules, without forcing them. Is deontology an adequate
means for achieving that in practice?
II. Complying with
what? An analysis of three examples
For dealing with this question, it seems useful to focus on some particular
examples, showing typical difficulties in regulation. Such cases are
the handling of medical data in relation with the demand of medical
confidentiality (1), the problem of confirming death in transplantations
(2), and the distinction between therapeutic and reproductive cloning
from a researcher's viewpoint (3). In the two first examples, coexisting
legal rules and rules of deontology reflect in a characteristic way
the different function of each regulatory order. In the last one, hypothetical
at present, this coexistence is to be established, for avoiding a "brutal"
regulation, threatening important social benefits.
1. Medical data v/s medical confidentiality
According to the article 10 par. 2 of the Oviedo Convention on Biomedicine
"Everyone is entitled to know any information collected about his
or her health. However, the wishes of individuals not to be so informed
shall be observed". This is the so-called "right not to know"
about the personal health condition, protecting the individual's freedom
of choices for his/hers future life. It is certainly a legal rule, binding,
first of all, the professionals of health.
Let us also remind two other rules, of deontology this time, stating
that the doctor should make all efforts for preserving the patient's
health, and that all medical information about a person's health are
covered by medical confidentiality. These rules are equally binding
for a doctor, though at the moral level.
Suppose now that, after performing tests for a particular genetic disease,
a doctor finds modifications in the patient's genome that might provoke
another such disease in the future, though a serious one, i.e. the Alzheimer's
syndrome. Since genetic characteristics are hereditary, it is possible
that the same predisposition for Alzheimer's syndrome could be also
presented in the genome of the patient's relatives, i.e. children, parents
etc.
Our doctor faces a complex dilemma: Should he/she inform the patient
about this new information or, by doing that, he/she is violating the
right of the patient "not to know" about the personal health
condition? For avoiding this, should the doctor inform the relatives
who might have also the genetic disease's predisposition, in order to
undergo relevant genetic tests and therefore to take preventive measures
for their own health, or in that case he/she infringes the medical confidentiality
covering the relationship with his/hers patient?
Is there a "third solution", for example not to tell the
doctor anything to anybody about the new find? But, in that case, don't
we have an infringement of the other deontological rule, providing the
doctor's duty to preserve the patient's health?
All these questions are critical for somebody who practices medicine
conscientiously, and all are relative not to the concurrence of rules
of a different content but rather to the concurrence of rules of a different
source. Before explaining that, let us first observe that the "vicious
cycle" in which the doctor is involved is due to the presence of
all three rules at the same time. We would have a solution, if anyone
of them was absent, but this is not the case. Yet if we suppose that
all these rules were belonging to the same order, that is, all were
legal rules or rules of deontology, we would have also solutions. In
fact, in such a case either (in the former assumption) the doctor would
ask his lawyer on which legal rule is prevailing in that occasion, without
facing any doubts of conscience, or (in the latter one) he would try
to weigh up the different rules in accordance with personal moral criteria,
without the fear of legal sanctions. But now he faces both regulatory
orders, and consequently a conflict of threatening sanctions, legal
and moral as well.
2. Transplantations
The second example I would like to present is that of the confirmation
of a person's death in transplantations. Today, scientists have no doubt
that, when brain operations cease, we have the crucial evidence for
confirming the death of a person. "Brain death" is the real
death, in the sense that we cannot expect in scientific terms that brain
operations will be repaired: In contrast, we can be sure that the operation
of all other vital organs will inevitably stop, even if some of them
are still active. Based on this evidence, a doctor can remove organs
from the body of a deceased person, before they become useless for transplantations.
Yet even if there we have a scientifically accepted identification
of death as "brain death", sometimes this is not enough for
proceeding to the removal of organs. Scientific conclusions and affirmations
are not necessarily those accepted by the moral stance of an individual
or by a moral stance shared by many people in a wider social environment.
This is reasonable, because, by its nature, science is moving faster
than the common sense, its role is to reveal facts often hardly adapted
to what ordinary people believes.
Therefore, it is possible that ordinary people, like for instance the
relatives of the deceased person, cannot believe that their beloved
son, daughter, brother, sister, husband, wife etc is truly dead, since
brain's operations have ceased, despite the fact that his/hers heart
is still biting.
We cannot exclude from that common way of approaching death even some
doctors. Certainly, scientists are more willing to adopt scientific
evidences, since not only their formation but also their every day professional
practice is based on the rational way of thinking. Yet, even for a scientist,
the phenomenon of life is not just a natural fact, but is considered
as something "valuable", a fact with the highest moral importance.
Thus, although death is naturally unavoidable, morally is perceived
as something "bad". That's why everyone believes that we should
take every possible measure to postpone its coming, and this is the
mission of medical professionals par excellence.
This strong moral importance of life affects some doctors, in the sense
that, although they know well the scientific evidence of "brain
death", at the same time they suppose that science is able to reveal
nature's secrets only partially. Therefore, they prefer to believe that
a "miracle" could reverse this tragic condition and the life
of a certain person could eventually be saved.
There is no doubt that this complex situation should be regulated.
First, because we address a conflict between, on the one hand, the social
demand of preserving many people's health, and even life, by using in
proper time vital organs of deceased persons, and, on the other, the
common sense's difficulties to accept "brain death" as the
unquestionable evidence of death. Second, because, if what is mentioned
before is correct, the decision of stopping mechanical support of a
patient, the brain operations of which have ceased, is depending not
only on scientific knowledge, but also on the personal moral beliefs
or the psychological reactions of the doctors in charge. Is law or is
deontology the best way to guarantee effective regulation in that case?
If we force doctors by legal rules to stop mechanical support of patients
when confirming brain death, perhaps we can satisfy the social demand
for finding organs for transplantations. On the other hand we cannot
be certain on whether we respect the personal attitudes of the rules'
recipients, in such a fine issue. Some doctors could find in those rules
an excuse for "disconnecting the tubes", others could feel
humiliated for being forced to comply with, against their strong personal
beliefs and their professional dignity, and others could even refuse
to comply with those rules, for not being able to suffer an obligation
against their own conscience or even the conscience of the patient's
relatives or friends. In any case the application of such rules is almost
impossible to be controlled. Who will control the accuracy of brain
death's checks but the doctors themselves? Is any official of justice
able for doing that?
3. Cloning
Our third example is emerging from the widely discussed perspectives
of biomedical research. A possible application of cloning in humans
is a brilliant idea, that promises no less than a new era in modern
medicine, and, at the same time, a highly questionable method, that,
if succeed, could create grave problems for our social and moral values.
Cloning in humans is not yet a common research practice, not even an
accepted one by the scientific community. Nevertheless the successful
attempt of cloning in mammals, few years ago, has provoked not only
an intense scientific interest for testing the method in humans, and
a considerable bioethical discussion about the social and moral effects
of such an experimentation, but also the adoption of specific international
or national legal rules, and numerous legal approaches on that issue.
It seems that a recent announcement about a successful attempt of human
embryos cloning, coming from a Southern Korean research team, will intensify
this legal interest.
At present, the bioethical and the legal discussion could be summarized
as follows: Cloning of human embryos could be used as a method for therapeutic
purposes, by providing us with stem cells, a precious material for developing
in vitro tissues or even organs, useful for transplantations. For doing
that, we don't have to implant the early embryo into a woman's womb,
that is, to start the process of reproduction. However, by removing
stem cells, we possibly destroy the embryo at the very first stage of
its development (up to 8 - 16 cells).
On the other hand, cloning could be used in the future as a method
of reproduction. If we proceed to the implantation of a cloned embryo
into a woman's womb, the process of the human organism's development
could be normally continued, and eventually we would have a baby - clone.
The external characteristics of this new organism would be almost identical
to them of the cloned organism, perhaps his/hers mother or father. According
to the opinions of the vast majority of scientists, legal scholars,
philosophers, sociologists and politicians, this perspective constitutes
a new form of eugenics, violating our fundamental social values.
And it is due to that argumentation that reproductive cloning is now
prohibited explicitly by special laws in Europe, and in countries like
Australia, Canada, and Japan.
If the therapeutic use of cloning is welcomed as a new tool for protecting
people's health, though, in contrast, reproductive cloning is considered
as threatening our social values, how can we promote the former and
avoid the latter? Given that, both perspectives are based on the same
method, once again we are facing here a particular problem of effective
regulation.
For instance, suppose that there is a strict law prohibiting reproductive
cloning, and providing, accordingly, strict sanctions. And suppose that,
despite that prohibition, a couple of interested persons along with
a scientific team proceed successfully to the application of such a
method and create a baby - clone. Even if those people should be punished
for their act, the result of it is irreversible: The baby - clone would
be still there, and, consequently, the law would be proved ineffective.
For avoiding that, we can think that, perhaps, the best solution is
to prohibit every use of cloning, that is, the therapeutic one, as well.
Therefore we can be sure that, at least, the scientists willing to proceed
would face an additional legal burden that could prevent them from starting
the process, before even thinking to implant a cloned embryo into the
woman's womb.
Yet, in that case, there is no more need to seek or discuss the benefits
of therapeutic cloning. Due to a "brutal" legal prohibition,
unable to establish effective regulation in such a fine issue, those
benefits are considered also as being "prohibited".
III. A moderate
role for legislation
In all these examples we can observe problems of efficacy in legal
regulation. The law sole is not able to ensure the desirable social
effects in each particular case. In the first two cases, legal rules
exert an unaccepted pressure on the conscience of their recipients,
and therefore cannot govern the conduct of them. In the cloning case,
the legal regulation sacrifices an obvious social benefit for the sake
of effective control.
Nonetheless, the law disposes a unique quality in regulating things:
It unifies social conducts, regardless the personal beliefs of individuals.
In this section, I will argue that we can profit from this quality of
law in biomedicine, if we adopt legal rules oriented to moderate aims.
These rules should rather promote than impose desirable social conducts
(1). Furthermore, they should connect professional deontology with the
general legal values of a democratic society, in order to reduce contradictions
in regulation. In that sense, they keep rather a "subsidiary"
role in regulation, by covering uncertainties occurring when we are
trying to understand the concrete meaning of deontological rules in
particular cases (2).
1. Avoiding sanctions and offering motives
Legal rules could be effective in biomedicine by inviting individuals
to adopt a certain desirable conduct, or even attracting them to do
that by offering motives. Traditional orders backed by sanctions, that
impose mandatory patterns of conduct to their recipients, are most likely
to become ineffective, because, in that field of social activity, we
have to deal with extremely sensitive issues of the recipient's conscience.
A medical intervention concerning matters of life and death (as in
our second example) or matters affecting deeply the life's quality of
a person (as it happens in the first example) is of great importance
also for the life and the dignity of a honest professional, since it
tests seriously in practice his/hers personal morality.
In ordinary social life such experiences are rather rare. Usually we
are willing to obey legal orders backed by sanctions, either because
we don't consider the social issues they regulate as critical for our
morality (these are, for instance, the issues regulated by the Highway
Code), or because these orders correspond to unquestionable moral stances
(such as, for example, the orders sanctioning homicide, or fraud etc).
It is more than obvious that this is not the case of moral dilemmas
occurring in biomedicine, such those that we have examined in the aforementioned
examples. Because, there, not only the doctor is standing between conflicting
choices of critical moral importance, but also he/she is facing a persisting
demand of his/hers conscience for making the right choice.
In such cases the law should, at least, respect the difficult personal
position, by avoiding authoritarian orders. We can plainly understand
the reason on which such a respect is based, since in a democratic society,
no collective interest or moral attitude, even expressed by the law,
can overthrow the freedom of conscience. It is precisely this last fundamental
freedom that needs to be maintained in ethically critical instances
occurring in the life not only of a doctor but also of any individual.
Although not authoritarian, the law in biomedicine can effectively
promote a socially desirable conduct, by using "permissive"
rules, backed not by sanctions but merely by motives. In that sense,
a rule permitting, for instance, therapeutic cloning and offering administrative
or financial support to the labs interested is more likely to persuade
a scientific team to focus its interest on this particular use of the
method and, thus, avoid its use for reproductive purposes.
Certainly, it is not always easy to find appropriate motives for guiding
the conduct of interested persons in biomedicine. Socially desirable
patterns are pretty vulnerable, when both sides (doctors and persons
undergoing treatment) have strong reasons to behave differently. For
giving an example, a well-known legal and also deontological rule in
IVF prohibits the selection of the embryo's sex on the basis of preimplantation
tests, unless for preventing sexually linked diseases11. However, selecting
the embryo's sex serves also social desires of the future parents. Are
there, really, adequate motives for preventing this kind of selection?
In such cases the answer is difficult. Yet if we are not able to imagine
motives discouraging parents for demanding children of determined sex,
and labs for offering this kind of service, perhaps we have reach the
limits of legal regulation. Regardless of this prohibition's correctness,
only rules of deontology and, eventually, the moral attitudes of the
persons involved are in place to ensure the socially desirable pattern.
Unless making known in public this pattern, a legal rule declaring it
is deprived of any other force, even if it threatens violators with
strict sanctions.
2. Bridging deontology with the general principles of law
The other aim of the law in biomedicine should be to bring in close
relation professional deontology and the general principles of law,
in order to establish a "unified" regulation in that field.
Since deontology is referring to the moral attitudes of professionals,
its rules determine a wide area of possible personal choices, and they
often use, for that, a pretty general wording. Even if deontology plays
a vital role in biomedicine, the risk of having completely different
choices in similar cases weakens the certainty and predictability of
the regulation as a whole and, eventually, its efficacy. For avoiding
that, we have to "bridge" deontology with the legal system,
which, by contrast, is characterized by a significant degree of certainty.
Special legislation in biomedical matters should "transfer"
deontology in legal documents, showing the way that these matters correspond
to particular aspects of fundamental legal values, such as the human
dignity, the protection of human life, the right to personal freedom,
the right to privacy, the right to procreation, the right to health
etc.
Both the UNESCO's Declaration on the Human Genome and the Oviedo Convention
illustrate clearly this point. In these documents, for instance, the
deontological "informed consent" principle is connected with
particular legal rights (for example, the aforementioned "right
not to know"12) and with detailed processes that ensure its applicability
in practice13. Furthermore, these documents establish a logical order
of rules, starting from the most general rule of the human dignity respect14.
In that order, biomedical practices are connected with legal notions,
like the equal protection principle15, or fundamental rights, like the
right to research16. Via these notions, they are connected furthermore
with a whole legal theory and jurisprudence structured not in the last
few years but during a long period of time. This characteristic ensures
certainty in regulation, since it is based on a stable tradition of
law.
A firm connection of deontological rules with the general principles
of law is critical in the legal practice, for covering normative uncertainties
and gaps, emerging from the application of deontology in specific cases.
A judge wants to know, for instance, if there are legal limits to the
informed consent principle or to the principle of medical confidentiality.
Both principles (and deontology as a whole) preserve a good professional
practice, and thus their application cannot be treated as independent
of the socially accepted system of fundamental legal rights and values.
A dangerous experimental intervention is not always justified on the
basis of the patient's informed consent, not only because the quality
of this information or the circumstances of the consent may be proved
disputable (and therefore unaccepted from the deontology's point of
view), but moreover because there is an absolute legal limit in biomedical
experimentations emanating from the legal principle of human dignity.
In the same way, the deontological demand of preservation of medical
confidentiality should not be understood as binding, when the legal
right to health of another person demands immediate action, i.e. in
HIV/AIDS cases, and probably in some serious genetic diseases. Yet not
only the officials, but also the practitioners should be informed about
the legal implications and limits of professional deontology. In this
respect, a legislation making clear this connection between the two
normative orders, and thus preventing possible uncertainties is more
than necessary.
Conclusion
By its nature, modern biomedicine constitutes a field of coexisting
legal and deontological rules, stemming from different needs. On the
one hand, as biomedical questions are closely related to the fundamental
principles of social life, do not concern only some specialists, but
eventually affect every one of us. Therefore, the law seeks to define
a socially acceptable measure of the new applications, that is, to adjust
the rapid development of technology and science to our social values.
On the other hand, critical questions in biomedicine raise dilemmas
of conscience to the doctors, and researchers involved. For dealing
with these dilemmas, medicine and scientific research have developed
special patterns of deontology, which are rules of professional ethics,
freely adopted by professionals themselves.
Since both kinds of rules regulate the same object, there is always
a likelihood of conflict between them, or at least a situation of uncertain
regulation. This is the reason that we need a balance, for maintaining
as far as possible the benefits of both regulatory orders, namely the
force of deontology in persuading those who exercise biomedicine and
the "unified" force of law in regulation. In this paper, we
examined a model of such a balance, supposing that legal regulation
may be proved more effective in biomedicine on two particular conditions.
According to the first of them, the law needs to use permissive rather
than dictative forms, by avoiding sanctions and offering motives for
encouraging desirable social conducts. The second condition requires
from biomedical legislation to connect deontology with the general principles
of law, provided especially in the Constitution and the international
documents on human rights.
Under these conditions, the law can cover normative gaps, occurring
where provisions of deontology have a vast content, in order to achieve
an effective and clear social function, characterised by the highest
possible degree of certainty.
NOTES
* Research Member, Hellenic National Bioethics Commission, Athens.
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