Embryonic Stem Cells in an International Human Rights Framework
| Date | 01 September 2016 |
| Published date | 01 September 2016 |
| DOI | 10.1177/016934411603400304 |
| Author | Ignatius Yordan Nugraha |
| Subject Matter | Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 34/3, 227–249, 2016.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 227
EMBRYONIC STEM CELLS
INAN INTERNATIONAL
HUMANRIGHTS FRAMEWORK
I Y N*
Abstract
Recent scienti c breakthroughs h ave revealed an innovative method of reg rowing organs
from embryological stem cells. is method can be har nessed to treat various life-
threatening diseases such a s cancer and leukaemia. However, it has spurred controversy
since it requires the destruct ion of the embryo from which the stem cell is d erived. On
the one hand, various ac tivists argue that the unborn e mbryo has the right to life. O n
the other hand, people who need s tem cell treatment might argue that the y have the
right to the highest attainable st andard of health, and hence are entitled to stem cel l
treatment. erefore, there is a potential con ict between the right to h ealth and the right
to life, and thus this paper analyses the cur rent framework of international human rights
law in order to conclude which right is applicable in this c ase. is paper also tackles
the important and related issue of wheth er international human right s law currently
prescribes the right to life to unbor n embryos, as this is a decis ive issue in determining the
applicability of both rights. However, this paper will not d eal with ethical questions per se.
Keywords: embryo; embryonic s tem cells; right to health; right to l ife; stem cells
1. INTRODUC TION
Scienti c and technological adva nces have unravelled methods t hat are able to grow
organs from embryological stem cells, and this technology is called “therapeutic
cloning”. e embr yological stem cells are biological ly pluripotent, or in other words
are capable of growing into any huma n cell or organ. us, such a method can be
utilised to regrow lost orga ns, such as the sal ivary gla nd which might be destroyed
during the process of ir radiation of cancer.
* Ignatius Yordan Nugra ha is an LLM gra duate from Leiden Universit y. e author would like to
express his dee pest gratitude to Ms Brig it Toebes from the University of Groningen for her helpf ul
comments and sug gestions for this paper.
Ignatius Yordan Nugra ha
228 Intersentia
However, ethical questions have been raised since in order to procure the
embryological stem cel ls, one has to destroy the embryo from which the pluripotent
cell is derived. erapeutic cloning is o en considered as immoral or even a murder
by various activis ts.1 Although in recent years a Japanese stem cell researcher called
Shinya Yamanaka has developed a met hod to procure stem cells wit hout destroying
an embryo, the di lemma raises some complex questions u nder human rights law.
Various activists wi ll argue that the embryo has the right to life, since from their
perspective life begins from the moment of conception.2 On the other hand, it can
be argued that people who require stem cell treatment have the rig ht to the highest
attainable sta ndard of health, and hence are entitled to stem cel l treatment.
is paper ana lyses the current framework of international huma n rights law and
scrutinises t he interests of the various st akeholders in the debate, with a focus on
the right to life of the embr yo and the right to hea lth of the patients who require
embryonic stem cell treat ment. Moreover, this paper tackles the impor tant and
related issue of whether international huma n rights law currently prescribes the rig ht
to life to embryos, as th is is a decisive issue in determ ining the applicabil ity of the
right to life in the stem cel ls debate. e con ict that may aris e between the right to
health of the patient and t he right to life of the embryo in States where life is deemed
to commence from the moment of conception or where embryos are awarded lega l
rights wil l also be scrutinised.
Based on these ndings, this paper argues that although prima facie there seems
to be an obligation to assure a ll necessary medical treatments (including embryonic
stem cell treatment) with exemptions for count ries who cannot achieve it, embryonic
stem cell treatment is sti ll mostly hypothetic al and consequently there is no obligation
for the State to research and develop such treatment under the right to healt h.
More over, t he rig ht to h ealt h als o pres crib es an oblig ation to pri orit ise pr ima ry he alth
care, which is re ected i n the Convention on the Rights of the Ch ild. On the other
hand, the applicabil ity of the right to life to embryonic stem cel l treatment seems to be
more fragmented and largely depends on t he regional approach. While the America n
Convention on Human Rights ‘i n general’ extends t he right to life to the moment
of conception, recent cases in the American Commission of Human R ights seem to
indicate that it does not interdict scienti c progress based on the use of embryos.
Within the Europea n system, the European Court of Human R ights maintained that
it is for the Member States to determine when li fe begins. As a result, in Europe, the
approach is even more fragmented and largely depends on t he national perspective.
Lastly, in relation to the potential c on ict between t he right to health a nd the right
to life, this paper recom mends that courts in t he States which recognis e the right
to life of the embryo should argue that in the speci c case of embryonic stem cell
1 Margaret A Farle y, ‘Roman Catholic Views on Research Involv ing Human Embryonic Stem C ells’
in Suzanne Hol land, Karen L ebacqz and Laurie Z oloth (eds), e Human Embryonic Stem Cell
Debate: Scien ce, Ethics, and Public Pol icy (MIT Press 2001) 115–117.
2 Ibid.
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