Health Law And Bioethics The Human Embryo*s Status

Ana Anjo 003038
* 1. Concept of the human embryo – perspectives
* 2. Uses of The Human Embryo and issues
* 3. International and european law
* 4. Portuguese law
* 5. Doctrine and jurisprudence
* 6. Comparative law
1. Concept of the human embryo
1.1. Ontological concept:
* The human embryo is a complex object
given the scientific
development which creates new realities and problems
* The concept of “person” is achieved by philosophy whereas
biology looks only at the scientific aspect
* There are several theories to explain the embryo
and a
conclusion is almost impossible (is it a group of cells, tissue,
organs or human?)
* Ethic committees use metaphysic terms: the embryo as a
potential person
* Biology does not detect the evolution of the identity from every
* Although there isn’t a manifestation of the person “in utero”, there
is a person in development
* Religion – believes in human life created since conception (40
days for Hebrews, 121º days for Muslims)
* Jean-François Mattéi: deserving of respect and protection or is
it just a morphologic expression of life that begins with
fecundation and doesn’t deserve status
* Peter Singer: distinguishes concept of person and human being
* Questions: when does life start? Is there a difference between
zygote and human? What is to have life and the potencial to
have it? If zygote is not a person can it be manipulated?
1.2. Biological concept
* There are several scientific concepts to describe natural
events of conception
* Luís Archer – fertilizing the egg and fusing it with sperm creates
the zygote which originates the human embryo. Then, it is
transferred to the uterus for nidation and a fetus is formed.
* Commission for the Study of Bioethical Issues:
zygote is the
organism in development after fecundation, embryo occurs
after the second and eight week after fecundation and fetus
after the ninth week
1.3. Concept of person and embryo
* Should the embryo be respected as a person for the beginning
or progressively?
* Peter singer – the person is a rational and self conscious being
which means the fetus shouldn’t have more value than an
animal (eugenics critic)
* Comité Consulltatif National d’Ethique – with fecundation there is
a living human organism in development that should be
protected as a human being in potential (prohibits scientific
* Conselho Nacional de Ética para Ciências da Vida – the embryo
begins human life deserving of dignity as it will never create
anything else but a human being
2. Uses of The Human Embryo and issues
* There is not a single solution for the embryo’s status as
philosophy isn’t an exact science and biology cannot be
indifferent to moral values
* Proposed solution: biology should function as an exact science
and philosophy aids in profound ethical matters
* The legislator can choose to: create human status ( and create
the figure of embryocide), classify as a group of cells to
investigate or not to legislate at all. Laws may vary based on the
concept adopted
* Oliveira Ascenção – the embryo is not a thing and is not a
property. As the highest point of life in formation it should be
protected with a specific status
* Issues: abortion, cloning, stem cell research, scientific
investigation or experimentation in the embryo, medically
assisted reproduction, prenatal diagnosis, surplus embryos
3. International and european law
* Convenção para a Protecção dos Direitos do Homem e da
Dignidade do Ser Humano face às Aplicações da Biologia e da
Medicina (Oviedo, 1997) – human being must prevail over
society or science, principle of consent, no discrimination on
genetic basis, no genetic manipulation (except for therapeutic
reasons), no sex selection, adequate protection for in vitro
embryo research (when legal), prohibits embryo creation for
scientific investigation
* Daniel Serrão – proposes a protocol to the convention to protect
embryo and fetus from investigations for scientific purposes
although there is no consensus.
* Proportionalists – embryo is a form of life without autonomy
* Essentialists – embryo carries genetic heritage to be protected
* RECOMMENDATION 1046 (1986) on the use of human
embryos and fetuses for diagnostic, therapeutic, scientific,
industrial and commercial purposes - right to a genetic
inheritance which should not be artificially interfered with
except for therapeutic purposes, clear ethical and social
guidelines, future benefits must be carefully assessed
* Definition of the biological status of an embryo is
necessary, legal position of the embryo is precarious and
not yet defined by law
* Forbid any creation of human embryos by fertilization in
vitro for the purposes of research, experimentation on
living human embryos, may not be used without the
consent of the parents or gamete donors, use for profit or
remuneration shall not be allowed
* European Charter Of Children’s Rights – there is life since
conception and should not allow investigation unless for
therapeutic purposes or for extremely useful for science
* Resolution 16.3.1989 – use of embryos for commercial
purposes is punished, cryopreservation only for limited time
with the intent to implant
* Universal declaration Of Human Rights – every human being is
born equal and free with human dignity and right to life
4. Portugal
* In Portugal, Law has a function of regulating society to solve
conflicts but there is no law to regulate the embryo status,
specifically cloning, in vitro-non implanted embryo or medically
assisted reproduction.
* There are projects since 1987 until today without materialization
(decreto 415/VII that regulates assisted procreation techniques
vetoed by the President for lack of consensus)
* Only in 2006 a law for medically assisted procreation (Lei 32/06)
was created and abortion was approved by referendum (Lei nº
* Despite that, there is a conscientious choice of not regulating the
problems justified by personal freedom of the individuals
* Constitution – protects the family and human life as a
fundamental rights (24º, 36º) but nothing stated about embryos.
* Civil Law – concedes legal personality to whoever is born
completely and with life but refuses rights or obligations to the
embryo. Pereira Coelho claims legal personality begins with
separation from uterus.
* Penal Law – art. 131º prohibits homicide and damages to human
life. There are several theories to the beginning of life yet the
majority defends birth begins with contractions. Before that any
damage is considered abortion and after is infanticide (136º).
Pre-natal conduct and diagnosis use the criteria of harmful effect.
Art. 140º protects intrauterine life and the mothers considering that
life starts with the nidation of the embryo in the uterus. Abortion is
not a crime since 2007.
5. Doctrine, jurisprudence and Legal opinions
* Constitutional court – intrauterine is not irrelevant but is not apt
to possess right to life (justification for therapeutic, eugenic
and criminal abortion).
The embryo “in vitro” does not have right to life like other human
beings and a supposed “right to be born” succumbs before
other higher values (Acórdão 85/85 By Vital Moreira)
* Supreme Court – medical malpractice caused a false
representation of the embryo’s health and the mother couldn’t
perform an eugenic abortion.
The court, based on US’s doctrine of wrongful birth, concedes
the mother’s right to be compensated by damages from
pregnancy and the children’s special needs although criticize
compensation for birth as every life is equal and there is no right
to not exist (9434/06.6TBMTS.P1.S1)
* Doctrine in civil law – the embryo does not have
rights or
obligations without legal personality but can acquire rights by
donation or inheritance.
* Theory of reduced personality, legal fiction or rights without
* Some authors do not recognize any rights to the unborn child,
others think rights are acquired when born alive and Mota Pinto
defends rights to unborns which will have full effect from birth
* Doctrine in penal law – there are three positions: only formed
life is protected, there is no difference between life in
formation or formed and there is no legal obligation to
protect both even if art. 24º CRP regards to them
* Life begins with natural process of contractions of the uterus
in frequent and irreversible fashion to expel the fetus;
material acts to induce labor; or the first act to surgically
perform caesarean
* Justifies the extra protection of life because both mother and
child are exposed to a greater danger with the intervention of
third parties. Intrauterine life is protected against abortion
(never negligent) but not infanticide or physical integrity.
* Despite some protection for the fetus there is none specific
for the embryo
6. Comparative Law
Period of
embryo to
Embryio to
No regulation No
Chart taken from: O embrião e o direito, Helena Pereira de Melo
* Spain – Ley 35/1988
Authorizes investigation in non viable embryos
Debate about what is viable, rejected for parental project, surpuls
* France – 152-3 Code de La Santé Publique
* Prohibits investigation unless it benefits the embryo, is not intrusive
and parents consent
* Now, parents both parents can consent to donate embryos for
* Germany – Embryonenschutzgesetz (1990)
Collect and transfer the number of embryos allowed by law
Prohibits scientific investigation if the embryo is not implanted
* UK – Human Fertilization and Embryology Act (1990)
Allows consent to create embryos for investigation and stem cell
research in severe diseases