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Before birth – after death
  1. J M Harris
  1. Correspondence to:
 Professor J M Harris
 The Centre for Social Ethics and Policy, School of Law, University of Manchester, Williamson Building, Oxford Road, Manchester M13 0JH, UK;

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Editor-in-Chief John Harris discusses the four events that remind us of the concerns about what happens before birth and after death.

Four recent events have reminded us that many people are concerned about what happens before birth and after death, even if what happens before birth happens to those who will never be born and even if the near death happenings occur after death and to those who cannot care about them. The recent events involve a decision of the European Court of Human Rights, a decision of the UK Human Fertilization and Embryology Authority (HFEA), a proposal before the UK Parliament and a book by the most famous living German philosopher.

On 8th July 2004 The European Court of Human Rights (ECHR) in Vo v France1 confirmed the view that the scope of legal principles protecting human individuals does not normally extend to the unborn and that in the words of the court “the unborn child is not regarded as a “person” directly protected by Article 2 of the Convention”. (The Convention referred to here is the European Convention on Human Rights and Fundamental Freedoms. Article 2 of the European Convention on Human Rights and Fundamental Freedoms and Article 6 of the International Covenant on Civil and Political Rights recognise the existence for all persons of a right to life protected by law). This case has demonstrated once again that the unborn do not generally possess such a legally protected right.

A few weeks later, the HFEA made an important decision (published on the 11th August 2004), which has been reported and discussed worldwide, giving British scientists permission to perform therapeutic cloning using human embryos for the first time. The purpose of the work is to investigate new treatments for conditions including diabetes, Parkinson’s and Alzheimer’s disease.

Last year Jürgen Habermas2 suggested in a new book that genetic modification including gender selection involves curtailing the ethical freedom of future children or involves causing them to suffer a terrible psychological burden of knowledge the effect of which is that such children would “no longer regard themselves as the sole authors of their own life history”.3

Finally The Human Tissue Bill currently before the United Kingdom Parliament concerns the ethics of using post mortem human tissue and the associated issues concerning the consents that might be relevant.

The first two events, the decision of the ECHR and that of the HFEA, provoked genuine horror from those who, like Josephine Quintavalle of the pro-life group Comment On Reproductive Ethics, believe that “no human life should be sacrificed for the benefit of anybody else, no matter how dramatic the promises are.”4 Such a view seems to take the moral high ground and to reject any trade-off between lives. But, so far from rejecting a trade off between lives, the pro-life position actually advocates such a trade-off. It says that in a choice between the lives of embryos and the lives of those whom embryo research might save, it is the embryonic lives that must be protected. The ethics of this way of choosing between lives certainly require more attention.

A different focus on the ethics of either interfering with embryos or indeed choosing between them is the object of Habermas’ concern. While we cannot know for certain whether or not Habermas is right about genetic modification or indeed gender selection, we do have a substantial body of related empirical data to call upon. The world over millions of people marry exclusively within their race, cast, religious group or clan. All the resulting children will know that they were chosen, among other things of course, to have features typical of those races, casts clans etc. While there may indeed be some evidence that these practices are harmful, the harm has not been such as to lead to any widely supported prohibition of such practices, at least on the grounds that concern Habermas.

The Human Tissue Bill was provoked by a series of cases of the abuse of retained human tissue and organs,5 but deplorable as those abuses were, the proposed remedies risk prioritising the interests of the dead and their relatives and friends over those of the living and their relatives and friends. Both sets of interests command respect and deserve consideration. What is less clear is whether, as the Bill proposes, the interests of the dead (or more realistically of their relatives) should have some sort of priority. This is another example of a case in which we are forced to “trade-off” or choose between the moral claims of different groups of people and in which priority is claimed for one side of the equation as against the other. What is required is a genuine and painstaking balance of those competing interests and the costs of prioritising one set over another.

Editor-in-Chief John Harris discusses the four events that remind us of the concerns about what happens before birth and after death.


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