Introduction

The scientific progress in the biomedical field and the control of the legal-social processes that accompany such progress do not move at the same speed, for there is an enormous discrepancy between the speed of the first and the slowness of the second. The increasingly urgent need for legal responses for the technologically advanced society is notorious. The constant alterations in the technological plan must be followed by a change in the legal-institutional environment.

However, as confirmed by the present research, this does not apply to Brazilian Law. Technologies for assisted reproduction are not ruled in an ethical-normative manner, but rather they are oriented by scientistic knowledge and economic interests. In the face of the new dangers to human dignity due to the advance in technological control over the human species, Law is responsible for the arduous task of protecting people in all of their dimensions. Ethics by itself is not strong enough to guarantee respect for a person. Therefore, law is responsible for defending the human being against the abuses to which it is exposed to during all of the most fragile moments of its existence, from beginning to end. The law is also entitled to the task of formulating a comprehensive strategy for the rehabilitation of the subject that is constantly threatened by the fragmentation of her identity.

In this context, we introduce the issue of the legal-moral status of the human embryo that originates from in vitro fertilization. It is of the utmost importance to face this controversy, since the definitions of what is legal and illegal in relation to the new possibilities of artificial intervention of human life depend on a response for the personality of these beings created in laboratories.

This article seeks to find the lost connection between man and person. For this, we adopt the concept of persona by Robert Spaemann (2010) in order to show the identity between “human being” and “person.” We defend the notion that the human embryo is a person and has very personal rights (Andorno, 2012; Palazzani, 2007; 1997; 1992). These rights are being ignored by the use of pre-implantation genetic diagnosis to choose the best genes and for the selection of embryos that are compatible with the couple’s diseased children. These situations show the instrumentalization of human life and yet, they are authorized by resolution 2.168/2017 of the Brazilian Federal Council of Medicine.

1. THE IDENTITY BETWEEN “HUMAN BEING” AND “PERSON”: ROBERT SPAEMANN’S CONCEPT OF PERSONA

The extracorporeal embryo created by in vitro fertilization brings with itself the concept of person, including its meaning and attributes, since rights and duties can only be assigned to a subject under law. The word “person”, undoubtedly, presents a multifaceted concept that was culturally constructed and, therefore, for the law, this word does not carry all of its semantics. The term was redefined in order to facilitate its operationalization and, therefore, “person” became a technical-legal concept of law.

However, the inclusion of the human person in the formal and abstract concept of subject within legal relations puts the latter on the same level of legal entities, which, due to technical-scientific reasons, are also qualified as subjects of legal relations. In a system grounded in the formal structure of the legal relation, people are considered subjects, not because their human nature and dignity are recognized, but rather because the law provides them faculties or obligations to act on, delimiting their exercise of power or demanding the fulfillment of duties.

In this technical-legal sense, the notion of “person” does not coincide with the notion of human being, which results in a disrepute of the human person, since it is reduced to a mere element of the legal relation.

In the Constitution, the human person is not categorized as a subject that can appoint, that formally constitutes a family and that owns a property. The constitutional protection is directed at the person’s dignity, which is considered in all of its derivations. All of the institutions that exist in the legal order find a guarantee only due to their function to allow the development of human personality (promotional function). In the new constitutional order, the human person centralizes the legal institutions to the extent that the individual is valued. Therefore, the technical-legal concept of person is insufficient to suffice for most of the varied situations in which the person, like all human beings, must be protected.

The history of mankind is filled with examples of the transformation of human beings into objects for the use by other people. Colonialism, slavery, racism and Nazism, as modes of discrimination, have all made evident the vulnerability of the human condition. Today, in the context of technological innovations, we question whether there is a new type of discrimination, a subtler one that only considers as a “person” the human being with a certain degree of physical, psychological and social development (Palazzani, 2007).

According to Robert Spaemann’s account (2010), which is the theoretical reference adopted for this study, the concept of “person” cannot be defined from the ascertainment of determined specific qualities. The choice for certain characteristics for the definition of a person will always be arbitrary and will imply accepting that some have authority and power to decide in which conditions one is or ceases to be a person.

Spaemann (2010) averts the understanding that differentiates “human being” from “person” and avoids the considerations that define as “person” only those that in fact unite rationality and self-conscience, which therefore exclude from this concept all embryos, fetuses, elderly people who begin to lose the use of reason, individuals in a comma and others who do not hold the previously mentioned qualities. For Spaemann (2010), cognitive function does not define a person; there is no necessary link between both categories. The person should not be confused with her qualities; because then she would stop being a person when she no longer possessed these qualities. It is because men are treated like people that the development of these abilities is possible.^[1] The person can only see herself as an autonomous and imputable agent if the continuity of herself or her natural development is uninterrupted.

Being a person is also not a status because one does not appear little by little. Therefore, personality is not qualitative; it does not allow gradation and, therefore, there is not a point that distinguishes whether the being is or is not a person. Since there is no transition between “something” and “someone,” the embryo cannot be taken as a potential person, but only as a person in a determined stage of her development.

In the essence of every conscious living being, there is, before anything else, a group of potential positions for the being; thus, in what concerns the human species, the decision-making experiences depend on a determined degree of intensity. Becoming aware is a quality of experience itself. Experience becomes conscious of itself in its own, singular experience (Spaemann, 2010). In this sense, Spaemann (2010) defends that conscious life is not at first conscious of itself as conscience, but as life; that is, conscience starts as an impulse from which one lives before being conscious to, afterwards, become aware of oneself.

Conscience exists in a metaphysical dimension and its development, even if it is still only prospective, is inherent to the human essence, but conscientious acts are performed in different degrees. If conscience, as understood by Husserl (2006), is the element that characterizes both man and person, any man is a person, even if there is no actual rationality. Therefore, there are no extrinsic requisites to be fulfilled by man to deserve the qualification of person; one only needs to be human.

Consequently, since the embryo gathers all necessary characteristics for the development of the born human, and, as such, continually transforms itself until death, due to the multiplication and mutation of his or her cells, there is no valid reason to exclude it from the category of person. This, in turn, makes it worthy of recognition and legal protection (Andorno, 2012; Palazzani, 2007; 1997; 1992).

Spaemann (2010) defends a substantialism about the being. Personality has its starting point in an ontological conception, but does not reduce itself to an ontological loneliness; it first develops other spheres, such as family, society and culture, which, throughout human development, will be equally important for the formation of the person and his or her identity.

The relation of the individual with its peers is a constitutive part of its existence. Intersubjective relationships allow the individual to be aware of itself and, in this sense, the term “person” refers to a dialogue, since it is only possible to know oneself through the other. The term “person”, even though it primarily refers to a coincidence with the biological essence of the human being, needs to be understood from a relational perspective, with an intrinsic bipolarity, in which one only is a person next to someone else.

Man only knows himself and is capable of defining himself in a relationship. The answer to the question “who is man?” will always be revelation of a group of relationships that define him. The development of personality, achieving human potential or, in other words, the implementation of all that man can be and is asked to be, happen in relationships with others (Gonçalves, 2008). Intersubjective relationships, however, are not juxtaposed on the personal reality; they are constitutive of the very ontological reality of the person in the relation. This relational opening does not mean that man is a being in itself. Being in itself and being with are a dichotomy only in appearance. The two dimensions lay entirely within the person’s structure. “Person” is a unique, although complex, reality. The complexity of these two existential dimensions integrates the unit of the person’s ontological reality.

Therefore, man is not just a relational opening, a perspective that would negate any true subsistent ontic dimension. The contrary is also true, since man is not exhausted by an ontological enclosure, intersubjectivity would seem like something accidental and dispensable. Man is constituted by both dimensions in one and only act of being. This reality is what we call “person” (Gonçalves, 2008, p.158). Human reality is ontologically immutable. This truth brings an inevitable consequence to Law: the inherent legal implications in relation to being a person are the same, not depending on the circumstances or the subject’s condition. Since there are not any diverse ontological moments in the human reality, the only possible description for the extracorporeal human embryo is the recognition of its status as a person.

2. THE DEFICIT OF ETHICAL REFLECTION AND DEMOCRATIC LEGITIMACY OF RESOLUTION 2168/17 OF THE BRAZILIAN FEDERAL COUNCIL OF MEDICINE

With regard to reproductive technologies, there is a gap between the ethical formulation and the legal standardization. Brazilian Law did not consider assisted reproduction as a field that needs to be effectively regulated. In Brazil, regulation of this matter has been conducted by the Federal Council of Medicine. Since the Federal Council of Medicine is the body that defines the precepts of medical ethics, this is, the rules of conduct for practicing medicine, it does not have social legitimacy to make dispositions about matters that affect the whole society.

We observe in the Council’s resolutions that deal with reproductive techniques the stipulation of duties and rights for the service users, so that the rules of professional conduct for doctors have become moral judging parameters for conflict cases. Diniz (2000) explains that the moral prestige reached by the Council strengthened the belief that the task of mediating moral conflicts in medicine exclusively concerns the Council and this is never questioned, particularly by medical service users or even by other health professions. There is an understanding that the doctor’s professional ethic must also be the standard for moral conduct by all those involved in health services, an assumption that reinforces the authority of doctors in the national sanitary structure.

However, we also observe the existence of an exclusively scientistic bias present in the bills in progress^[2] that end up favoring particularly the interest of professionals involved in the field (clinics and pharmaceutical laboratories), and silencing the dissonant voices in the matter. Thus, completely neglecting some fundamental rights of the new life form that is being generated.

Life producing technologies can be understood as being inserted in a logic of biotechnological consumption and commodification of the production of life, given their concentration in the private medicine sector, which equates the conception of a child to the consumption of luxury goods. We verify, then, a change in contemporary capitalism that includes experiences and relationships as goods.

The capital, science and technology triple alliance is visible in the figure of the techno-embryo (Ramírez-Gálvez, 2003): its constitution was only made possible by the high financial investments in the scientific and technological areas. The creation of partnerships between specialized clinics and pharmaceutical laboratories brings with it the question about the place of laboratories in the configuration and expansion of the therapeutic spectrum of medications and the use of medical equipment.

Marketing interest follows the expansion of new conceptive technologies in order to make the commodification of the body and its parts something acceptable. The convergence of capital, science and technology submits the domains of social life to the regulation of market laws. Strathern (1992) argues that services of assisted reproduction are not applied in favor of the self. Following a strategy of consumption, the entire enterprise primarily satisfies those who try to make a business out of the family.

Given the importance of legal assets at stake, such as human dignity, life, reproductive rights and scientific progress, the lack of a more precise legal regulation of the techniques for assisted reproduction causes perplexity. The lack of laws opens questions about medical knowledge, excluding the influence of other types of knowledge such as psychology, anthropology, philosophy and even jurisprudence. Currently, there is no incentive for a democratic debate and this entire matter is only regulated by resolutions that are provided by the Federal Council of Medicine.

Nonetheless, we admit that even if the proclamation of a specific law to regulate this issue is made, it will be insufficient after a while, since it is impossible to foresee all eventual conflicts. Despite this, the commitment to a legislative process on this issue is indispensable in order for the discussion about reproductive technologies to involve various sectors of the society, so as to make it an ample exercise of democratic debate.

There is a need for establishing channels for discussion among society and the Government, such as public audiences, in order to allow the creation of a legal discipline for assisted reproduction that actually includes the values of the political society.

Resolution 2.168/17 of the Federal Council of Medicine is recent and lacks proper interpretation. It allows the use of techniques of assisted reproduction to categorize the embryo’s HLA system, in order to select embryos that are HLA-compatible to another child of the couple that might be already affected by an illness that can be effectively treated by transplanting stem cells or organs. The resolution also allows for the use of reproductive technologies for homosexual couples or single people; for assisted reproduction post-mortem, as long as there is a specific previous authorization from the deceased parent; and for the shared donation of oocytes. These are all themes that have not been debated democratically.

In the absence of a scientific study that searches for a better interpretation of the new reproductive technologies, there is a risk that the scientistic bias affects the pending bills in the country for the defense of the interest of professionals and neglect of the users and the society. Just because a technology is available, it does not legitimate all of its forms of use; they must first be evaluated based on the values of the political community. ^[3]

3. ETHICAL DILEMMAS OF THE PRE-IMPLANTATION GENETIC DIAGNOSIS

The previous critiques are visible in the authorization for the use of the techniques of assisted reproduction coupled to the selection of embryos subjected to diagnosis of genetic alterations that cause disease, according to Resolution 2.168/17 of the Brazilian Federal Council of Medicine.

The Pre-Implantation Genetic Diagnosis (PGD) is done to detect chromosomal and genetic pathologies in order to rule out specific genetic conditions or to select the best embryos to be transferred to the uterus, excluding the possibility of the development of a future hereditary genetic disease. The technique is applied, mostly, on couples with a high reproductive risk.

Prior genetic knowledge allows, thus, corrective measures that take place in two different manners. It is possible to identify the genotype of the embryos (that will be implanted) and impede the expression of enzymes or proteins that generate from an unwanted gene through the use of personalized treatments, thus preventing certain diseases with a genetic predisposition. Likewise, the genotype of many embryos can be studied previously and only those that present the desired characteristics are chosen, whereas the remaining ones get frozen.

As is clear, from this technique, some people start having the power to define genes and, consequently, embryos, which must be either conserved or eliminated; through the anticipated manipulation of the processes of the biological life, these people have control over future generations. Moral and political implications emerge thereof, regarding the need to examine whether this technization of the human life alters the ethical perception of the species, and the way in which man sees himself as free and morally equal, responsible for his own story.

In light of Habermasian thought, the choice for the best genes has an impact on the autonomy of the individual to be generated and in the moral structure of the society. The irreversible decision over someone else’s genetic heritage raises an unknown intersubjective relationship, different from other relationships of recognition, given that it excludes the symmetry of the responsibility (Habermas, 2004). Without this symmetry, one can no longer consider that all subjects have a chance to make an experiment out of themselves, with their own achievements and capacities, since those, whose genes were previously selected, are deprived of this possibility to constitute themselves through an ethics of self-reflection.

From the moment that parents choose the genetic configuration of their children, they imply certain expectations that they hope to see come true. This can harm the being’s conscience of autonomy, and will have more difficulties to see him or herself as an autonomous member of a community of free and equal individuals, born under the same conditions. The ethical self-comprehension is dependent on the fact that we see ourselves as the sole directors of our life story and we can recognize ourselves and mutually as people that behave autonomously (Habermas, 2004).

The choice of the genetic material cannot be seen as an extension of the parents’ reproductive freedom; it is not part of this fundamental right and it is in conflict with the ethical freedom of the children. Habermas (2004) defends the existence of the right to non-manipulated genetic inheritance. For this philosopher, the conservation of a biological heritage free of genetic manipulation presents itself as the only way to secure equality and freedom in interpersonal relationships. By differentiating positive and negative eugenics,^[4] Habermas (2004) accepts the occurrence of the latter, since the search for the prevention of genetic diseases somehow considers the consent (even if it is counter-factical) of that being. The need for consensus allows for the specialist’s performance to be consistent with the communicative action when considering the perspective of the other.

On the other hand, by practicing positive eugenics, the adopted perspective refers to the parents’ subjective preference, while the specialist takes on the role of an artisan who will mold the genetic composition of the cells to meet the parents’ wish to conceive a being that carries in its genetic heritage the best genes according to their judgment of value.

We observe that the two types of eugenics are different based on the attitude they have towards the embryo. In negative eugenics, there is a communicative approach, while in positive eugenics, there is an instrumental approach. The genetic project that the parents determine for their future children does not meet the conditions of reciprocity for communicative comprehension. The parents’ preferences dictate the genetic interventions, reducing the embryo to a state of availability by the technique (Habermas, 2004).

Genetic interventions for the selection of the best genes do not permit dialogue and do not treat the planned child as a second person (Habermas, 2004):

The genetic program is a mute reality and, in a sense, it cannot be repaired, for the one who is not satisfied with his genetically fixed intentions cannot, like those born naturally, relate to his own aptitudes (and deficiencies) throughout the story of a life whose appropriation was reflected and whose continuation was voluntary, so as to review his self-comprehension and find a productive answer to his initial situation. (pp. 86-87)

Eugenic interventions of improvement hurt the ethical freedom of the being generated, since it is subjugated to purposes defined by others, which it might come to reject someday, but to which it will be stuck irreversibly. Therefore, its comprehension of being the sole author of its own story will be undoubtedly compromised.

These considerations apply to the matter of medication-babies considering that PGD is, in fact, a modality of control over the embryos’ genetic quality. Undesired genes are eliminated as much as embryos that carry illnesses. Resolution 2017^[5], by allowing the use of assisted reproduction techniques to select embryos that are HLA-compatible to another child of the couple who is already affected by a disease, have authorized the “production” of embryos whose biological material will be destined to treat someone else.

Embryos are already created having a specific function, which is incompatible with human dignity in the Kantian formulation, which conceives a human being as an end for itself. To be generated with reservations and, only after a genetic examination, to be considered worthy of existing and developing is not compatible to the principle of human dignity. Furthermore, if PGD analyzes two cells of an embryo that only has eight, it increases the probability of this being, if born, to suffer serious illnesses linked to genetic imprinting, a risk that is not divulged by fertilization clinics.

Another ethically negative aspect of the production of medication-babies is that this implies the freezing or destruction of a great number of embryos. Chao (2010) reports that, in 2005, the updated results of the experiments of the Chicago Reproductive Genetics Institute, along with other centers in Australia, Belgium and Turkey, show that out of the 1130 embryos produced, only 123 were compatible and therefore implanted; of these, only 13 were born, which reveals an efficiency of 1.15% in the method. The same author asserts that PGD is presented to the society as an effective way to eliminate illnesses. However, PGD does not prevent illnesses, it eliminates its carrier.

Therefore, we argue that PGD is a technique that provides some human beings the capacity to decide over the lives of others. The parents and doctors see themselves as having the authority to decide whether the genome of the individuals generated have the necessary quality before they can develop. The rights to health and life of the embryo generated in vitro are not being considered in order to solve the problem at hand.

4. CONCLUSION

Technological advances have adopted a role of “villain” in society, which represents to most the danger of a new Leviathan. Technology, however, should not be a problem, but its presence must be built from dialogue and intersubjectivity, so that the technique does not present a loss in identity.

Technical-scientific progress must not be condemned as if it was intrinsically perverse. It is undeniable that progress provides goods and services thanks to which it is possible to enjoy a better quality of life and, in the case of technologies for assisted reproduction, the technique allows for the accomplishment of the parents’ reproductive right.

The central point in this matter is in the distinction that must be made between real progress and apparent progress, where only the one that uses such techniques for the development of human personality should be considered.

In relation to assisted reproduction, we verified that the regulation by the Brazilian Law is at the mercy of the technique, since no ethical reflection has yet been made. Resolution 2168/17 of the Brazilian Federal Council of Medicine authorizes the use of PGD without major considerations, ignoring the effects that the previous analysis of genes will cause to the future generations and to the perception of the human species itself. Therefore, we found that an instrumentalization of human life in its initial phase is sufficient to sustain the unconstitutionality of all the biotechnological practices that reify the human being and put it at the service of other purposes other than to itself.

The extracorporeal embryo, in the current Brazilian scenario, is seen according to the technical-scientific categories and is reduced to the status of a “thing.” This new objectification is much more direct, since it presides directly on the human being’s body. The person’s job is no longer threatened by objectification, but rather the person’s own being is threatened in its deepest radicalization.

Scientific progress does not result in moral progress; therefore, we argue the need for the holding of a democratic procedure that includes other information that is currently excluded by the scientistic bias of the normative documents that deal with assisted reproduction.

References

Andorno, R. (2012). Bioética y dignidade de la persona. Madrid: Tecnos.

Brasil. (1993). Projeto de Lei nº 3.638 de 17 de março. Brasília, DF, 1993. Institui normas para a utilização de técnicas de reprodução assistida. Disponível em http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=19976.

Brasil. (1997). Projeto de Lei nº 2.855 de 13 de março. Brasília, DF, 1995. Dispõe sobre a utilização de técnicas de reprodução humana assistida e dá outras providências. Disponível em http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=18719.

Brasil. (1999). Projeto de Lei nº 90 de 09 de março. Brasília, DF, 1999. Disponível em http://www.senado.gov.br/atividade/materia/detalhes.asp?p_cod_mate=1304.

Brasil. (2001). Projeto de Lei nº 4.655 de 16 de maio. Brasília, DF, 2001. Dispõe sobre a autorização da fertilização humana “in vitro” para os casais comprovadamente incapazes de gerar filhos pelo processo natural de fertilização e dá outras providências. Disponível em http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=28415.

Brasil. (2003). Projeto de Lei nº 1.184 de 03 de junho de 2003. Brasília, DF, 2001. Define normas para realização de inseminação artificial e fertilização "in vitro"; proibindo a gestação de substituição (barriga de aluguel) e os experimentos de clonagem radical. Disponível em http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=118275.

Brasil. (2017). Resolução nº 2.168 do Conselho Federal de Medicina de 10 de novembro, Brasilia, 2017.

Chao, E. (2010). Problemas éticos em la selección de embiones com finalidade terapêutica. Cuadernos de Bioética, XXI(2), 231-242. Espanha: Asociación Española de Bioética y Ética Médica.

Diniz, D. (2000). Tecnologias reprodutivas, ética e gênero: o debate legislativo brasileiro. Série Anis, 15, 1-10. Disponível em https://sistemas.cfm.org.br/normas/visualizar/resolucoes/BR/2017/2168

Gonçalves, D. (2008). Pessoa e Ontologia: uma questão prévia da ordem jurídica. In: J. de Oliveira Ascensão (Org.). Estudos de Direito da Bioética II (pp. 125-182). Lisboa: Edições Almedina.

Habermas, J. (2004). O futuro da natureza humana: a caminho de uma eugenia libera? Trad. de Karina Jannini. São Paulo: Martins Fontes.

Husserl, E. (2006). Ideias para uma fenomenologia pura e para uma filosofia fenomenológica. São Paulo: Ideias e Letras.

Palazzani, L. (1992). Essere umano o persona? Persona potenziale o persona possible? Rivista Internazionale di Filosofia del Diritto, (3), 446-471.

Palazzani, L. (1997). Persona e essere umano in bioetica e nel biodiritto. Idee, 34(35), 133-147.

Palazzani, L. (2007). Os significados do conceito filosófico de pessoa e suas implicações no debate atual sobre o estatuto do embrião humano. In: J. Correa, y E. Sgreccia (Orgs.), Identidade e estatuto do embrião humano. Atas da terceira assembleia da Pontifícia Academia para a vida. Bauruaru: Edusc.

Ramírez-Gálvez, M. (2003). Novas tecnologias reprodutivas conceptivas: fabricando a vida, fabricando o futuro. Campinas, Tese (Doutorado em Ciências Sociais) – Faculdade de Filosofia e Ciências Humanas, Universidade Estadual de Campinas.

Spaemann, R. (2010). Personas: acerca de la distinción entre “algo” y “alguien”. Navarra: EUNSA.

Strathern, M. (1992). Reproduction the future: essays on anthropology, kinship and the new reproductive technologies. Manchester: Manchester University Press.

Notas

Notas de autor

Enlace alternativo

https://revistas.unbosque.edu.co/index.php/RCB/article/view/2272/1907 (pdf)