Human Dignity, Health Law & Biomedicine Prof. Dr. Martin Buijsen Erasmus School of Law/iBMG Erasmus University

Outline The Concept of Human Dignity The Concept of Health Law The Biomedicine Convention

The Concept of Human Dignity More references by Dutch health lawyers to human dignity Result of policy statements preceding ratification of Biomedicine Convention Internationally accepted human rights as guiding principles of Dutch medical ethical policy

Human Dignity in Positive Law Universal Declaration of Human Rights 1948 International Convention on Civil and Political Rights (1966) International Convention on Economic, social and Cultural Rights (1966) Charter of Fundamental Rights of the European Union (2010) Convention on Human Rights and Biomedicine German Constitution, Constitution of South-Africa European Convention for Protection of Human Righs and Fundamental freedoms (1950)?

A Concept with Content ECHR , nr. 47/2008: Human dignity is ‘the very essence of the Convention’, ‘recognised fundamental value at the core of positive human rights law’. Human dignity worthy of respect ‘Rights derive from the inherent dignity of the human person’ (preamble UN-Covenants 1966) Violating rights = violating dignity (in principle) Rights constitute meaning of ‘human dignity’, but not entirely ‘Human dignity’ is in part represented in positive law, and in part it is not

Dignity as Attribute of individual Human Beings Dignity not synonymous with autonomy Dignity may not be identified with autonomy Dignity encompasses autonomy Dignity is the fundamental concept Yet individual human beings are subjects of dignity

Transcendentals of Dignity Dignity is inherent to being human (inalienable) –‘One possesses dignity and its subsequents rights (due to one’s decent from human beings’ –Philosophers and theologians, substantivists v. formalists Dignity is temporary –No dignity before birth and after death Dignity is equal to all –‘One’s dignity (…) is a mark of one’s equality on some fundamental level with other human beings’

Human Dignity & Health Law Meaning of ‘human dignity’ in part determined, in part undetermined. The undetermined part of the concept theoretically useless. The determined part of the concept is theoretically useful. Relevant human rights can be used for the construction of an interpretive framework –Right to health access to health care (social) –Equal treatment (civil) –Integrity (civil) –Privacy (civil)

Morality & Law Ethics & Jurisprudence What is morality? –The subject of ethics What is law? –The subject of jurisprudence »Rules »Principles

What is Health Law? Health Law = legal principles and rules regarding : Patients/Clients I III Health care provider II health care insurer

What is Health Law? Health law = I. Law regarding health care provision II. Law regarding health care financing III. Law regarding health care insurance

Principles of Health Law Privacy Integrity Equal treatment Right to health (care) (Respect for human dignity) Law Morality Health as aspect of human dignity

Definition of human rights Rights that belong to an individual as a consequence of being human. They refer to a wide continuum of values that are univer- sal in character.

The Biomedicine Convention Content Scope Core rights: Dignity, Integrity and non-discrimination Equal Access Health ethics: professional standards Consent Private life Human genome Scientific research and consent Organ donation and transplantation Infringements Interpretation Protocols Reservations

ECHR & Biomedicine Convention References: –Cyprus v. Turkey –Vo v. France –Glass v. UK

Biomedicine Convention, Access to Health Care and Equal Treatment ?