Tuesday, May 17, 2005

The Constitutional Dilemma of Embryos

On 12 June, Italy will hold a popular referendum in order to seek to abrogate the statute on medically assisted procreation. The statute, legge 40, was approved by Berlusconi's government with the intent of filling a legal vacuum on the practices concerning the treatment of embryos and stem cells research. Unfortunately, this statute is badly tailored, so much so that many have claimed that a legal vacuum was still better than a bad law.

The problem is not easy, let's grant it. The status of the embryo is troublesome. How can a jurist come up with a clear answer to that? Is he going to apply well established legal concepts? If so, are we going to treat the embryo as a thing or as a person? Maybe it is something in between. But then, a jurist needs innovation of legal concepts.

Even if we agreed that the embryo is a person, would this mean that research on it/he/she is strictly forbidden. What about diagnosis that can prevent fatal illnesses?

It is clear that we are facing a dilemma. There is a conflict between the interest of research on stem cells and embryo, which could improve our lifes and prevent many illnesses, and the interest in protecting 'human material.' I do not think that there is an easy solution. Though, I am convinced that strict bans will not produce any good result, and will simply make us dependent from the research done in other countries.

Let's suppose that our community agreed that research cannot be done. Since, this is not the case in other countries, it is possible that their research will help finding new treatments for illnesses. What would we do in this case? Would we simply refuse to undergo that treatment, on the basis that it is the result of evil science, or we would accept it for the sake of improving our quality of life?

To illustrate the stupidity of this law, I will take what I consider the most outrageous aspect. A woman can be inseminated, the statute says, but there cannot be a diagnosis pre-implant of the embryo. This, it is said, is to avoid any type of eugenism, that is selection on the basis of subjective criteria of fitness. But the problem is that the mother is then permitted to have a diagnosis during pregnancy and decide to abort in case the foetus has a major problem. Thus, the statute creates a tragic inconsistency, which is the bottom line of the problem.

Constitutional dilemmas are not easy to solve. They imply hard choices, which will provoke the loss of something we value. When faced with such dilemmas, however, we have to take the responsibility as a community to ensure that our decisions are not ad hoc judgements, which claims political authority in the name of the majority that backs them up, but have no moral authority because they defy reason. More importantly, these measures should not have legal authority because they make a mess of the constitutional panorama by the creation of deeply inconsistent norms.

1 comment:

nathan gibbs said...

Just to make a brief comment about the important question of 'compromise legislation' that you raise and exemplify with reference to the debate on cloning. Although regulation of such matters is likely to prove compromised, the non-regulation of such matters might prove equally problematic as it could create a situation in which legal concept and rules are stretched to provide legal solutions to those cases involving litigation or prosecutions stemming from the controversial activity. Perhaps this these situations call for the type of 'proceduralist' regulation advocated by Teubner. This would displace the problem, but would it help resolve it