CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ TWO DECADES OF THE CONVENTION ON BIOMEDICINE: HAS IT BEEN ANY GOOD? do not directly establish rights and duties of persons and, therefore, must be transposed into national law. 9 Within two decades the Convention has changed Czech (medical) law and the overall health care environment probably more than anyone could have expected. The spirit of the Convention The Convention reflects accurately the questions of our time. The rapid development of life sciences, crowned with genomics as one of the most advanced vanguards of contemporary science, tirelessly presents society with new technologies bringing about new ethical and legal dilemmas. The societies of Western countries have lost their confidence in complex philosophical, ethical, and value systems. We live in postmodern times characterised by uncertainty, doubting, pluralism of values, and even existential anxiety. However, the respect for the value of a human person persists, and even more so, it has become the centre value of liberal societies. If nothing else, a human person and their right to personal fulfilment and freedom are considered a strong value upon which our society is built. 10 The health and life of a human person still represent the values of eminent importance. However, if a person is understood by our society as an authentically free agent, then they are entitled to make decisions regarding their own life and bear the responsibility that is inevitably connected with this freedom. 11 The autonomy of will, therefore, usually takes precedence over health and even the life of an individual. This philosophy seems to be ever more widely acknowledged by both legislatures and the general public in the Euro-Atlantic civilisation, given the prevalent trends in contemporary bioethics 12 and medical law regulation. Fully in accordance with the individualistic paradigm of Western culture, the Convention is governed by the fundamental values of human rights (and, in particular, human integrity), dignity, and identity. 13 The paramount value of the Convention is the concept of human dignity which, according to the Explanatory Report to the Convention, “constitutes the essential value to be upheld. It is at the basis of most of the values emphasised in the Convention”. 14 9 See ŠUSTEK, Petr, HOLČAPEK, Tomáš. Informovaný souhlas. Teorie a praxe informovaného souhlasu ve zdravotnictví. [Informed Consent: Theory and Practice of the Informed Consent in Healthcare.] ASPI, Praha 2007, p. 119. 10 See LIPOVETSKY, Gilles. Éra prázdnoty. [The Era of Emptiness.] Prostor, Praha 2001, p. 16. 11 See the Prologue in ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo. [Health Law.] Wolters Kluwer, Praha 2016, p. 29. 12 According to empirical functionalism, the prevalent theory of human personhood in contemporary bioethics, human personhood is dependent on a sufficient degree of fulfilment of certain – mostly cognitive – functions (such as the capacity to feel joy and pain, self-awareness etc.). Those who lack these capacities are human beings but they are not considered human persons. Alongside hedonism, this approach leads to the belief that human life is worth living only when it is accompanied by more pleasure than suffering. This philosophy stands behind the growing number of countries that legalise euthanasia and assisted suicide, but also behind much broader social changes regarding the overall approach to human autonomy or dealing with suffering. See for example ŠOLC, Martin. Reflections of Ethical Debate in the International Law Regulation of Stem Cell Research. In Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 8. Česká společnost pro mezinárodní právo, Praha 2017, p. 429, VÁCHA, Marek. Problém osoby. [The Problem of Personhood.] In VÁCHA, Marek, KÖNIGOVÁ, Radana, MAURER, Miloš. Základy moderní lékařské etiky . [The Introduction to Modern Medical Ethics.] Portál, Praha 2012, pp. 49-51, ŠOLC, Martin. Právo, etika a kmenové buňky. [Law, Ethics, and Stem Cells.] Wolters Kluwer, Praha 2018, pp. 70-71. 1.

13 See Article 17 of the Explanatory Report to the Convention. 14 See Article 9 of the Explanatory Report to the Convention.

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