Human biological samples constitute a precious source of genetic information for researchers looking to develop new treatments, diagnosis methods, or products to be sold on the market. The use of HBS in genetic research raises an innumerable amount of (bio)ethical and legal issues, including the requirements for the validity of the consent of the donor of the sample; the adequate level of protection of the personal data associated to it; and how to balance the different interests on the sample (personal, familiar and societal) and the protection of the fundamental rights of the sample donor. Furthermore, several different actors play a role in in the use of HBS (e.g. donors, hospitals, pharmaceutical companies, and universities, research ethics committees). Which law should govern these dissimilar issues and actors? This paper investigates to what extent the traditional public and private law instruments are enough to provide an answer to the issues raised by genetic research on HBS.
Textuality of several genetic tests, genomic research and the possibility of genome editing will soon change the landscape of the existing ethical and legal norms relevant in the field of life sciences. While genome editing is still a new technology, its potential implications suggest that we have to reexamine a number of basic ethical principles and legal arguments that govern bioethics and law. The safety and accuracy of genome editing need to be improved substantially before it can be used in medical therapy, but it already poses many challenges to established positions in bioethical debates. The recognized dichotomies that used to serve as normative anchors, such as natural versus artificial, therapy versus enhancement, and somatic versus germline will become increasingly blurred. The presentation intends to draw the contours of a new legal framework that responds to the current challenges of genomic textuality.
France and Germany have a quite similar legal framework governing the human reproduction. On one side, birth control, abortion and medically-assisted procreation are allowed. On the other side, surrogacy is forbidden. Historically, France and Germany prohibited strongly surrogacy, even if, in both countries, the criminal-prohibition affects only the intermediary. For the surrogacy mother and the intended parent, the sanction will be a civil penalty: the contract is not valid. According to French or German Law, the surrogacy mother will be the mother of the child. For a time, French and German Laws managed, with these different kinds of sanctions, to prohibit surrogacy. But in time of globalization, it was impossible to stop the development of Law-shopping. Regarding to the Law of the Council of Europe and the evolution of the French and German court decisions, the question whether it is still possible today to prohibit at all, and in an efficient way the surrogacy remains.
Both French and Greek Law allow medically assisted reproduction. However, both jurisdictions differ considerably with respect to the methods they allow. For instance, French Law does not recognise surrogacy. In contrast, Greek Law allows surrogacy agreements providing that any financial agreement between the parties (the prospect parents and the surrogate mother) is excluded. The explanatory note of the first law establishes an “individual right to reproduction”, which is also constitutionally protected. In opposition to Greek Law, French Law does not establish a “right to reproduction”. Rather, legal methods of medically assisted reproduction in France fall under the protection of public health. This intervention attempts to demonstrate that even if surrogacy in Greece takes the form of an individual reproductive right, limitations imposed on its exercise do not differ from limitations imposed by public law on personal liberties on grounds of public order.