Human Dignity, Human Rights, and Human Genetics
| Date | 01 September 1998 |
| Published date | 01 September 1998 |
| Author | Roger Brownsword,Deryck Beyleveld |
| DOI | http://doi.org/10.1111/1468-2230.00172 |
Human Dignity, Human Rights, and Human Genetics
Deryck Beyleveld and Roger Brownsword
*
According to an emerging international consensus, the practice of human genetics
should respect both human dignity and human rights.1In the Preamble to the
Council of Europe’s Convention on Human Rights and Biomedicine,2for example,
the signatories resolve ‘to take such measures as are necessary to safeguard human
dignity and the fundamental rights and freedoms of the individual with regard to
the application of biology and medicine’; and, similarly, in the Preamble to
UNESCO’s recently adopted Universal Declaration on the Human Genome and
Human Rights3— an instrument peppered with references to human dignity and
human rights — it is emphasised that research on the human genome ‘should fully
respect human dignity, freedom and human rights’.
Yet, how should we interpret this commitment, particularly the commitment to
respect for human dignity? Even if we do not dismiss ‘[a]ppeals to human dignity
. . . [as] comprehensively vague’,4we can scarcely deny that they need some
unpacking. As Mohammed Bedjaoui has remarked:
[A] legal framework for potential new practices or those already engaged in which concern
the human body is absolutely essential in that it protects man in his freedom and dignity. But
it is by no means an easy task... .
Take, for example, the concept of . . . ‘human dignity’. It is an expression which seems
simple: one immediately apprehends its prospective import, if not its exact meaning. But,
paradoxically, it is also an expression full of fragility, for in the name of the same argument
of ‘human dignity’ some refute [sic] the legitimacy of euthanasia, whilst others claim it as
the ultimate right of those who wish to ‘die in dignity’!5
The Modern Law Review Limited 1998 (MLR 61:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 661
* Sheffield Institute of Biotechnological Law and Ethics.
Drafts of this paper, or parts of the paper, were presented to Biomed 2 sponsored seminars at Sheffield
(April 1997) and Utrecht (November 1997), to staff seminars at the Universities of Leicester (December
1997), Hull (March 1998), and London (QMWC) (March 1998), and at the MLR pre-publication
conference in Cambridge (April 1998). For assistance with the concept of dignity in French and German
law, our thanks to Irma Arnoux and Sabine Michalowski.
1 See, eg, Proceedings of the Third Session of the International Bioethics Committee of UNESCO,
September 1995: Volume 1, at 120, where Philippe Se´guin, referring to the three French Acts on
bioethics of July 1994, said:
It is therefore fortunate and encouraging that a number of countries have, like France, set out over
the last decade to equip themselves with bioethics laws. This trend illustrates a growing awareness
around the world that legislators must, despite the difficulties, act to ensure that science develops
with respect for human dignity and fundamental human rights, and in line with national
democratic traditions. (Our emphasis).
2 Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being
with regard to the Application of Biology and Medicine: Convention on Human Rights and
Biomedicine (DIR/JUR (96) 14) (Strasbourg: Directorate of Legal Affairs, November 1996).
3 This Declaration, adopted unanimously by the General Conference on 11 November 1997, is the
result of more than four years work by UNESCO’s International Bioethics Committee.
4 John Harris, Clones, Genes, and Immortality (Oxford: Oxford University Press, 1998) 31.
5 n 1 above, 144.
Euthanasia apart, such fragility is all too evident where it is argued that the right
to adopt a particular life-style (claimed on the basis of human dignity) should be
limited for the sake of human dignity — witness, for example, both the German
Peep-Show Decision,6where the Federal Administrative Tribunal denied a licence
for a mechanical peep-show on the ground that the performance would violate
Article 1(1) of the Basic Law (according to which, the dignity of man is
inviolable), and the Conseil d’Etat ruling that dwarf-throwing (‘lancer de nain’) is
incompatible with ‘ordre public’,7because the dwarfs compromise human dignity
by allowing themselves to be used as mere things.8Fragility leads to paradox as
agents (peep-show performers and dwarfs) are rescued from one situation where
(as the FAT and the Conseil interpret it) human dignity is violated only to be
placed in a situation where (as the consenting agents interpret it) the basis for
human dignity is even more seriously undermined. How, then, should we
understand human dignity; how does it relate to human rights; and is it a concept
that is rightly seen as central to deliberations about the legitimate scope of human
genetics?
Our paper has five parts. First, we review the protean employment of the idea
of human dignity in international human rights instruments. Secondly, we isolate
two seminal notions of human dignity, one the idea that human beings, having
intrinsic value, must not be treated simply as a means, the other the idea that
dignified conduct is a virtue. Thirdly, we analyse these core ideas from a duty-
led perspective (of the kind associated with Kantian moral theory) before,
fourthly, interpreting these same ideas from a rights-led perspective (specifically
that associated with the moral theory of Alan Gewirth).
9
Finally, we consider
how far our (Gewirthian) analysis supports the widely held view that respect for
human dignity requires prohibitions on commercialisation of the human
genome, on human germ-line (and positive) interventions, and on human
reproductive cloning.
10
Our conclusion is that the concept of human dignity has
a legitimate place in debates about human genetics. However, it is something of
a loose cannon, open to abuse and misinterpretation; it can oversimplify
complex questions; and it can encourage a paternalism that is incompatible with
the spirit of self-determination that informs the mainstream of human rights
thinking.
6 BVerwGE 64, 274 (1981); and see Shayana Kadidal, ‘Obscenity in the Age of Mechanical
Reproduction’ (1996) 44 American Journal of Comparative Law 353.
7 Conseil d’Etat (October 27, 1995) req nos 136–727 (Commune de Morsang-sur-Orge) and 143–578
(Ville d’Aix-en-Provence).
8 See Marie-Christine Roualt’s note on the two decisions, Les Petites Affiches (January 24, 1996: No
11) 30, at 32; and, Bernard Edelman, ‘La Dignite´ de la Personne Humaine, un Concept Nouveau’
Recueil Dalloz 1997, 23e Cahier, Chronique, 185, 187–188.
9 See Alan Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978).
10 See Articles 4 (commerce), 11 (cloning), and 24 (germ-line interventions) of the Universal
Declaration on the Human Genome and Human Rights; Articles 13 (germ-line interventions) and 21
(commerce) of the Convention on Human Rights and Biomedicine, together with the draft Protocol
prohibiting human cloning (see n 18 below); Article 6(2) of the Directive on the Legal Protection of
Biotechnological Inventions, in which ‘processes for cloning human beings’ and ‘processes for
modifying the germ-line genetic identity of human beings’ are excluded from patentability (see
further n 12 below); and the HGAC and HFEA Consultation Document, Cloning Issues in
Reproduction, Science and Medicine (London: Human Genetics Advisory Commission, January
1998) which discusses whether cloning ‘raises new questions about more abstract concepts such as
individuality and human dignity’ (4).
The Modern Law Review [Vol. 61
662 The Modern Law Review Limited 1998
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