Bioethics and Law: Between Values and Rules

Introduction

The scientific progress of the last thirty years has opened up new doors in many different fields, such as reproduction (for example, in vitro fertilization and cloning), organ transplants, sexuality, and others.

This incredible scientific progress has had a significant social consequence: facts turned into choices. What in the past simply happened, has become a possibility that may be chosen by individuals. The boundaries of existence, its beginning and its end, are less precise, making more and more room for individual choice. With respect to the beginning of life, parents can learn whether their children carry genetic defects, and as a consequence, they can choose whether to bring them into the world, and if the embryos are the result of in vitro fertilization, the parents may even select which embryos to implant.

Similarly, the end of life is no longer totally beyond an individual's control. Scientific progress prolongs the last part of human existence. In many cases, death does not simply happen: it becomes a process in which the choice, and as a consequence the will, of individuals plays a crucial role.

These are only two examples that nevertheless highlight the legal consequence of this change: regulating personal choice is undoubtedly more difficult than regulating facts.

At first sight, the reaction of many legal frameworks to this incredibly rapid scientific progress has been to allow absolute freedom. Many fields have been characterized by a lack of rules, or at least by the stratification of an inconsistent regulatory system. It may be wrong to describe this phenomenon as a conscious choice by legal systems, at least in the initial phase; rather, it was the result of a shock. It was the shock of individuals facing the possibility of making choices about their own existence and the shock of societies facing newly broadened horizons. It was a shock to political frameworks, which had to deal with ethical dilemmas and with the uncontrollable quickness of new scientific discoveries. Finally, it was a shock to lawyers because scientific progress changed the basis of their "tool kits."

Not only have the legal rules had to face the role of individual choice concerning the basic aspects of human existence (reproduction, sexuality, etc.), but they more often have had to face the moral values that underlie those choices.

When freedom started to resemble anarchy, the need for rules emerged, but it clashed with a reflection about the role of law, especially with regard to ethical pluralism. Going back to the law also meant having second thoughts on the role of law itself. The adoption of regulations in the fields of biomedicine and bioethics has met many obstacles. For example, rules need (at least) a minimal level of consensus, as well as time, in order to be approved. It is extremely difficult to comply with both of these needs.

The analyses of these problems have led to a new substantive area of law: "biolaw."¹ It is based, in part, on the debate about the role of the law (especially with regard to statutory law) facing bioethics, and more generally, on the debate about the role of the law itself. This paper tries to explain the main features of this debate.

I. The Bases of Law are Crumbling: The Fading Away of the "Biological Paradigm"

If it is true that in the actual scientific framework facts become possibilities, it may be useful to give some examples. The incredible scientific advancements of the last several years have posed two main problems: on the one hand, individuals are facing the difficulty of making choices, while on the other hand, legal systems have to debate facts turning into possibilities and the changing of the biological reality that many legal rules were based on.

In the past, birth was described with certainty with a series of facts, which may be defined as the "biological paradigm."² In other words, the beginning of existence was described by an indefectible biological reality: a sexual relation, between male and female, whose gametes gave rise to fertilization. These were not choices; these were facts on which the legal...