Biolaw Today - A Comment on Andorno ’s “Principles”
In recent years, biolaw has received a lot of attention on the international as well as on the regional level and has arrived in both legal practice and academia - and its practical importance is growing. The practical importance of biolaw is widespread as the discipline not only relates to cutting edge biotechnology but also to fundamental questions with regard to human nature and identity as well as issues which ought to be of interest to everybody, such as universal access to health care. While biolaw often touches related disciplines such as human rights, bioethics, medical and healthcare law, malpractice law, criminal law and welfare law, to name just a few, it also often has to deal with highly controversial issues such as the legality of abortion, stem cell research, euthanasia and the like. Currently, many have little or no access to even the most basic health care services while on the other hand patients in developed countries can benefit from medical procedures which just a few years ago belong to the realm of science-fiction.
Bioethics and biolaw should not be confused with each other. From a lawyer’s perspective the term ethics might sound fuzzy and unclear, more about philosophical discussions than hard legal rules. This is not the case when it comes to biolaw. While it is true that the philosophical and other foundations of biolegal rules are more easily visible when compared to many other legal fields (say, for example, contract law), but the legal rules which make up this specific body of law are exactly that - legal rules. Today, such bio-legal norms can be found on all levels, from local ordinances to international treaties.
The Belgium-based publishing house Bruylant has recently published a collection of texts by Roberto Andorno of the University of Zürich which provides both an introduction to and in-depth insights into key issues of biolaw, in particular on an international level. The book is part of a book series on law, bioethics and society (“Droit, bioéthique et société”) which is edited by Brigitte Feuillet-Liger of the University of Rennes I. This book series, which includes books in English and French, seems to have really taken off since the year 2011, showing an increased interest in biolegal questions.
The ten chapters of this book have all been published before - yet, put together, they form as much a coherent whole as can be expected. In fact, the title could hardly be more fitting as the author is indeed identifying and explaining “[p]rinciples of international biolaw” by “[s]eeking common ground at the intersection of bioethics and human rights”. This journey of discovery includes articles and book chapters which have been published between 2003 and 2012. That does not make the general topic any less timely but has to be taken into account when considering buying the book.
However, the choice and sorting of chapters makes the book interesting for a wide audience, although a stronger focus on “principles” rather than the “seeking” would have been preferable: essentially, only the first three chapters deal with principles. This includes the origins and development of biolaw (Chapter 1), the role of human dignity and human rights for biolaw (Chapter 2), and the precautionary principle (Chapter 3). This choice covers key rules of international biolaw and by themselves already provide a very good introduction to the subject and can be recommended to anybody who wants to have get a basic idea of what biolaw is all about. On less than 90 pages, Andorno not only establishes a solid fundament for the subject in general, rather, these three chapters should be essential reading for every lawyer who deals with medical law or elderly law questions. In fact, just like every lawyer should have a basic understanding of contract law, even when practising e.g. criminal law, every modern lawyer has to have at least a basic understanding of what biolaw is and why it is so important today - and these three chapters serve this purpose more than well. But the author does not stop here and looks at several dimensions of international biolaw:
Just like the first three chapters, which have been published between 2004 and 2009, can be read together, Chapters 4 and 5 related to the same institution, the United Nations Educational, Scientific and Cultural Organization (UNESCO). Chapter 4 looks at UNESCO’s Declaration on the Human Genome while Chapter 5 deals with the crucial but all too often unknown Universal Declaration on Bioethics and Human Rights.
However, like in general human rights law, where the European Convention on Human Rights (ECHR) was the first binding regional human rights treaty which followed the adoption of the Universal Declaration of Human Rights (UDHR), the Council of Europe (CoE) has also taken the lead in terms of international biolaw treaties. In Chapter 6, Andorno looks at the Council of Europe’s landmark Convention on Human Rights and Biomedicine, often also referred to as the Oviedo Convention while Chapter 10 deals with the more specific issue of advance directive, which often (and misleadingly) are referred to as “living wills”. These are declarations which are made at a time when the person in question is capable of making decisions for potential future emergencies, for example with regard to the question which medical measures should be taken and which not. While many people in poor countries would be happy to have access even to the most basic medical services, advance directives often deal with a fear of too much technology in modern medicine. In a sense, there is a widespread fear that once one has become unconcious and unable to make decisions, he or she is turned into a mere object of decisions which are made by others and that one’s life is at the mercy of strangers and machines. Also, many wish to relieve relatives of the burden to have to make life or death decisions on their behalf. The unwillingness to suffer and to experience pain is then translated into a question of human dignity. While this approach can quickly lead to a denial of the sanctity of all human life and to the unsavory view that some lives are not worth living (a view which is incompatible with fundamental human rights), there is a significant demand for advance directives. Such declarations however are only effective if (potential) patients have a minimum degree of legal certainty. The Council of Europe therefore has been active in regulating advance directive, an issue with which Andorno ends his book. The Council of Europe, while sometimes confused with the European Union (EU) or its institutions (and even sharing the same twelve star-flag), is independent of the EU (all 28 EU member states are also among the 47 members of the CoE). Despite close cooperation in some issues, it is not surprising that CoE and EU legislation do not always overlap. Chapter 9 deals with these differences in the context of biomedical research.
Chapters 7 and 8 (which might as well have been numbered 9 and 10 in order to highlight the connection between the actual Chapters 6, 9 and 10) are used to draw the reader’s attention to more specific issues, in this case, gene databases (Chapter 7) and “[t]he right not to know” about one’s own medical condition (Chapter 8). If the book has a shortcoming it is here since more such examples, although not necessarily in the form of entire chapters, would have served well to illustrate key problems better. However, it has to be kept in mind that, despite the introductory nature of the first three chapters, this is not a textbook but a collection of articles and it is in the nature of such a collection of essays by one author that all not potential issues would be covered.
In this case the selection makes the book an interesting read for both newcomers to the field as well as for those who are looking fore more detailed information on more specific topics. In early 2014 I have used this collection of texts, together with other materials, for teaching a course on Human Rights and Biolaw at the University of Lapland in early 2014. That course was aimed at undergraduate as well as postgraduate students and by and large the texts by Andorno were found to be very accessible also for a wider audience. Given that biolaw is still a young academic discipline and that undergraduate courses, and materials suitable for undergraduate students are still rare, this book turned out to be an excellent choice for the purpose of teaching biolaw, although it is not a textbook as such. While not all chapters will be of equal interest to all readers, it provides an excellent starting point for students as well as researchers. The shortcomings the book has when compared to a classical textbook is the lack of coherence (which is inevitable in a collection of essays), which is due to its form, rather than its contents. Overall, if the specific nature of the book is taken into account, it can be recommended for anybody who is interested in biolegal questions.
Roberto Andorno, Principles of international biolaw - Seeking common ground at the intersection of bioethics and human rights, 1st ed., Bruylant, Bruxelles (2013).
 Roberto Andorno, Principles of international biolaw - Seeking common ground at the intersection of bioethics and human rights, 1st ed., Bruylant, Bruxelles (2013).