Doç. Dr. Hamide Bağçeci

Today when we evaluate technological advancements in bio-medicine field, we come across many new issues that are far beyond human comprehension and understanding such as cloning, genetic engineering, artificial intelligence, artificial insemination, organ plantation, biobanks and so on... The difficulty in understanding these new terminologies is obviously not only because of the conceptual and technological complexity of the issue, but also because of the concern that underlies the legal and philosophical debate accompanies this complexity. 

For example, due to improvements in gene technology, lets consider what might happen if a human is designed with desirable qualities,-especially with some superiorities and advantages- is realized or designed babies are born and even humans being cloned. What kind of questions would rise from such an assumption? Surely many questions can be derived from different disciplines, but it’s impossible not to ask the following questions from a legal and ethical point of view:  Should a new human class with genetic differences and superior skills are to be created, will this lead to the disruption of equality between individuals and create a unique and new relationship between them? Can "body integrity" still be maintained when the body is becoming a "thing" rather than a subject? Should biological inequalities are defined prior to the birth, and human behaviors are explained by biological inevitability, would the meanings we attribute to dignity, autonomy and freedom change? In fact, how can the answer be given to more concrete and technical legal questions such as; "is the cloned person the child or the sibling of the person from whom s/he is cloned?”[i]. So here comes the bottom line; do we have new generation rights that protects us from new generation problems?

Clearly, the answers to such similar questions are basically shaped around two different perspectives. At this point, transhumanists believe that with the technological advancement in biomedicine field, the whole humanity, including future generations, will turn into a "post-human being." Accordingly, being a "post-human being" is believed to be a progressive discovery through physical transformations and the effort to exceed one's own boundaries. This exploration, which leads to character and personal updating, embodies different emotional, psychological, mental, and physical existence forms, in this sense[ii]. Thus, a post-human, also called; "transhuman" is expected to be superior, because s/he is believed to be one who lives longer, healthier with wider intellectual capacity and ability to control his/her emotions[iii]. On the other hand, bio-conservationists argue that the innate value of the human being will be lost as a result of some biomedicine practices and the principle of equality that forms the basis of human rights will be violated due to the predominant use of these technology by the more advantaged groups.  Accordingly, they advocate that in order not to shift irreversibly on this highly slippery ground, prohibitions and measures that will prevent this from happening should be adopted on a global scale[iv].

Within this framework, we are aiming to analyze the effect of new discoveries and advancements especially in the field of biomedicine on the emergence of new generation rights with a future projection. Although the answers to the questions we ask in the first place are too complex and new to be explained from a pure legal point of view without filtering through our perception, values and even scientific awareness, the Convention on Human Rights and Biomedicine (Biomedicine Convention), to which we are a party, presents us a legal starting point regarding these issues[v]. In fact, Biomedicine Convention is the first legally binding document in Europe, which highlights principles such as human dignity, identity and integrity protection especially on the important bioethical concerns.

1. Human Dignity Concept: Updated

Determining whether biomedicine advancements constitute a potential threat to  human dignity brings the concept of protection and accordingly forms the essence of new generation of human rights. However, this determination can be achieved by stripping off the traditional perspective of human dignity and needs attention on the collectiveness on the human dignity. In other words, we should be considering about “collective human dignity” concept rather than individual human dignity when the biomedicine advancements are at stake. Surely, collective human dignity points more abstract concepts such as humanity, human identity, human life, and future generations. And it also stems from the idea that humanity owns "dignity" collectively while dealing with threats arising from technological advancements and misuses of biomedicine fields. Thus, in recent years collective human dignity has been addressed not only in the sense of protecting the sole inner value and essence of the individual, but as the protection of humanity values as a whole[vi]. This is mainly because of the potential danger of the undisputed progress in biomedicine, since it poses new and serious threats to human existence, identity and integrity of human species[vii].

2. New Generation Human Rights Under Biomedicine Law

When the historical emergence of human rights is examined, it is seen that rights are constantly evolving and changing over time due to the social, scientific and technical progresses and needs. Thus, human rights are considered to consist mainly of three generations showing us the dynamic structure of itself. Civil and political rights form the first generation rights. Social and economic rights points to the second generation of rights whereas third generation rights reveals the problem of human survival on the planet. The idea at the basis of the third generation of rights is that of solidarity; such as the right to sustainable development, to peace or to a healthy environment. On the other hand, we can say that intensive and rapid improvements in biotechnology field caused new rights to occur which we call as the fourth generation of human rights, today. They have mainly come about as a response to changing ideas about human dignity and as a result of new threats and opportunities emerging in this new era. And most of these rights are intended to protect basically against any interference that includes any change, modification, manipulation of the human body[viii].

We can list the specific rights that are most likely to be included within the category of fourth generation such as; “the right to be unique", "the right to knowing one's identity", and "the right to personal integrity"[ix]. Yet, it is not limited to the ones mentioned, because there isn't any clarification in the literature regarding these rights. However we can say that there is a consensus on the view that a group of rights which can be expressed as "somatic rights" or "the right to own one's body" are included in this category[x]. The rights included within this context such as euthanasia, abortion and artificial insemination, which have been regulated by laws to a great extent all over the world today, have gone through fierce debates recently.  As a matter of fact, such rights as the right to determine and decide about one's own future and body, the right to being born naturally and to be left to die naturally, the right to have access to artificial insemination have contributed many new concepts to “right and freedom” content.  For this reason, we believe biological human rights law requires specific interpretations with new concepts in the terminology. Therefore radical changes in the field opened the subject quality as well as the object quality of  human being to discussion[xi].

3. Biological Human Rights - Somatic Rights

The term "somatic", which is derived from the Latin word "somatikos" is described as "related to the body, that which can be distinguished from the mind (spirit)[xii]" In this context, somatic rights can be exercised as "biological human rights" as they are related to human biology. It is also noted that; “this generation of human rights is associated with a specific object – the human body and is dependent on the state of development of biology, genetics, medicine, technology, as well as society in general.” [xiii]

Somatic rights are composed of rights that have emerged as a result of technological advancement in biomedicine practices but  not separated from civil  rights that aim to protect body integrity. For instance, human enhancement, organ and tissue transplantation, motherhood surrogacy, artificial insemination, body reconstruction, sex reassignment fall into the scope of fourth generation category, but also related to the right to life and the right to privacy[xiv]. The main purpose of these rights is to guide one's own body existence and to be able to define the borders of one's own material and spiritual existence. So it  possible to consider these rights as the updated version of the civil  rights and freedoms until they are constitutionally defined. With this aspect, somatic rights are both an extension of the existing civil rights and freedoms and also an independent field of  fundamental rights and freedoms. On the other hand, it is obvious that this new category is actually shaped in the area where the bioethics and human rights intersect [xv].

Somatic rights have not been recognized particularly as a subjective right in the Biomedicine Convention, but revealed its purpose and object as; “…protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine”. It also set out the measures to safeguard human dignity regarding on specific fields such as; human genome (Chapter IV), scientific research (Chapter V), organ and tissue removal from living donors for transplantation purposes (Chapter VI) and prohibition of financial gain and disposal of a part of the human body (Chapter (VII). These chapters and provisions have strictly been determined in line with the purposes of the Biomedicine Convention. Besides many states already adopted these measures in their regulations to a certain extent. So, the real grey area is mainly originating from human enhancement (HE) methods which are in the baby steps of its progress in the world stage and are assumed to threaten human dignity.

Human enhancement (HE) concept is an umbrella term and refers to the concept of applying science and technologies to expand cognitive and physical human capacities. In the broadest sense, the process of HE can be considered as an improvement of the limitations of a natural version of the human species with respect to a specific reference in time.[xvi]  Such enhancements may include brain modifications to increase memory, alterations to biochemistry to change moods, creation of new capacities; for instance applying gene doping for sports. It may also include living for much longer with growth hormone to prevent aging and so on. The products of HE obviously helps one to go beyond her/his limitation, but at the same time it may also be used to restore health  and well-being. For this reason, the boundary between health restoration treatments and the interventions that aim to develop human functions is rather blurred. For example, gene treatment can eliminate a fatal disease, but the same methods can also be used to increase mainly physical performance such as only muscle power, flexibility, heart efficiency, and power generation. Also, the methods developed for couples who cannot have a baby can lead to begetting design babies by using these methods to determine such characteristics as physical structure, memory, intelligence, hair and eye color, and talent[xvii].

It should be noted that the indirect effect of HE technologies will create, especially in terms of protecting human dignity is the concern that a superior class will emerge and disrupt the equality. However, this claim stipulates to argue that there exist a perfect equality all over the world. Besides, it should be kept in mind that having different skills and capacity does not prevent being legally equal. Actually, at the basis of recognizing that all human beings have equal rights, there is the idea of protecting human beings against the better, the stronger, the smarter, and the more skilled, and preventing those with certain capacities from dominating others[xviii].  Even though it is accepted that such enhancements have threatening aspects in terms of human dignity, the approaches which ignore the benefits the humanity will receive from these developments should be meticulously separated, and the issues should be approached with caution but free from bias[xix]. To find the balance it might be an effective way to formulate and adopt measures of fourth generation rights within this scope.

We suggest that; "the right to know  biological roots", "the right to know genetic parents", "the right to know genetic origins", and "right to scientific research and advancement" are also within the scope of fourth generation rights. These are subjective rights emerged from needs regarding the implementation  of scientific innovations and bio-technology. However, we can also name other  rights that is aimed to preserve human heritage such as "the right to preserve one's genetic legacy” or “the right to sustain human species"[xx]. Thus, as  the artificial insemination techniques develop, the right to know one's biological roots and parents can become a more important right of a child  in the future as in the present time. As a matter of fact, even today, it is possible for people who do not know each other to have children through the insemination of cells obtained from biobanks and a surrogate mother. An even further scenario is the possibility of having babies in laboratory environment without needing a surrogate mother.

In all these situations, issues such as genetic mother, biological mother, and father's identity are intertwined, and children are born into the world with an anonymous origin phenomenon. These views argue that being born by artificial insemination techniques instead of natural ways will negatively affect the individual in terms of developing his/her material and spiritual existence and will cause inequality. Thus, they advocate that fatherhood test and disclosing donor identities should be the rights of the child[xxi]. This is because it is supposed that an individual having some certain genetic information about oneself may help her/him to arrange  her/his life accordingly and increase the quality of life[xxii]. For example, some of the personalized treatment methods in some genetic diseases require specific treatments. So it might be necessary to obtain stem cells or tissues from his/her genetic relatives.  In such situations, it becomes of vital importance for the person to know the people s/he is genetically related. Besides it will also be possible for the same person to take precautions against diseases inherent in his/her genetics or to adopt an appropriate lifestyle by knowing his/her genetic relatives and past.

Nevertheless, it should not be forgotten that in case of mandatory disclosure of the genomic data of the biological and genetic parents, this may create certain problems in terms of the protection both parents privacy. Although the phenomenon of anonymous origin will inevitably increase with bio-technological progress, maybe the focus should not be on whether these data are disclosed or not, but on how they should be disclosed in the best way, and more importantly on how to handle them in the best way once they are disclosed[xxiii]. On the other hand, ECtHR also adopts the view that the protection of the right of a person to know his/her biological identity is within the scope of private life. And it states that it could be realized only in a current and established family relationship[xxiv]. In addition, although there are regulations protecting the rights of donors in various countries where donation is accepted, it must be stated that the general trend in Europe is shifting in favor of the right of the child to know his/her biological origin. In this context, it can be claimed that the age of the legal anonymity of the donors is approaching its end, and that an age is approaching in which everyone has the right to know their biological origin[xxv].

The debates on rights such as "protection of genetic legacy" and "sustaining human species" have conceptually stemmed from concerns that appeared in terms of human cloning, copying and changing some basic features of the human species through genetic engineering. Today, it is possible to find cures for many diseases by eliminating risky genes through gene treatment and to have healthy babies by sorting out risky genes at the embryo stage. Although such gene treatment studies carry the risk of being used out of their purpose, the method being directed towards treatment and aiming to find solutions to the human's basic problems make it easier to consider these technologies more positively.

On the other hand, in the germ-line treatments, the situation is a little more complicated. Here, genes are transferred to reproduction cells or the embryo and transmitted to the next generations. But in this method what is unclear is that when and  how this transmission will effect  future generations since the consequences is not known  yet. So rights such as "protection of genetic legacy" and "sustaining human species" are basically aiming to prevent future harm to future generations.[xxvi]

In fact, although these rights are not subjectively regulated in the Biomedicine Convention, there are some regulations included to prevent the aforementioned inconveniences. For instance, as in Art. 13; "an intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modification in the genome of any descendants" aims to protect the genetic legacy and species of the human being. This is because the regulation especially prohibits any modification in the genome of the descendants. In parallel with this, the first article of the UNESCO Universal Declaration on Human Genome and Human Rights adopted in 1997 reads as follows; "The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity" and emphasizes the protection of genetic legacy and sustaining human species.

On the other hand, though it is beyond the scope of this study, it should be added that there are some approaches dealing with the concept of post human rights in a rather futuristic manner.

According to those, posthuman rights are the rights of the human-machine, which has been strengthened with artificial intelligence and modified with human enhancement methods, can have. And stated that in this context, “the right to be upgraded to a semi-robot” would be one of the post-human rights in the future[xxvii].

In conclusion, biotechnological developments pose questions that are difficult to answer but need to be answered. Although the rights we discussed as new generation rights in the study have not been subjectively regulated yet, debates on this right and concepts in the discipline are becoming widespread. Also, while the rights are being developed, the purpose should not be to prevent biotechnological progresses and related practices by conventional prohibitions, but to ensure that these developments proceed in a more consistent and sound manner in line with the human dignity and human rights. Thus, it will be possible to establish a balance between universal values and societal differences, and even to accept this balance as the boundary of individual autonomy.

Endnotes

[i] Hamide Bağçeci, “Biyotıp Hukuku Bağlamında İnsan Onuru Kavramını Güncel Bir Bakış ve İnsan Geliştirme Uygulamaları Karşısında İnsan Onurunun Korunması”, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi,V:XV, No:2, 2018, s. 1-2.

[ii] Lesliee Riggs, “Teknoloji İle Değişen İnsan: Post-Human”, s. 95, http://www.theposthuman.org

[iii] Woody Evans, “Posthuman Rihgts:Dimension of Transhuman Worlds”,  Revista  Teknokultura,  V: 12(2), 2015, s.379-391; Upendra Baxi, Human Rights in a Posthuman World, Oxford Press, 2015, 199-238.

[iv] Nick, Bostrom, “In Defense of Posthuman Dignity”, Bioethics, V:19.3, 2005 202-203; Eric Kain, “The Politics of Biology: Bioprogressives vs. Bioconservatives”, 2012, https://www.forbes.com/sites/erikkain ; Bağçeci, s. 22-23.

[v] Convention on the Protection of Human Rights and Human Dignity with Regard to the Application of Biology and Medicine   : On April 4, 1997, The European Council opened this Convention for the signature of the countries in Spain. Initially, more than 30 states including Turkey were party to the Convention. On 03.12.2013, Turkey ratified "Convention on the Protection of Human Rights and Human Dignity with Regard to the Application of Biology and Medicine: Law on the Ratification of the Convention on Human Rights and Biomedicine."

[vi] Roberto Adnorno, “The Dual Role of Human Dignity in Bioethics”" Medicine, Health Care and Philosophy, 2011, s. 5.

[vii] Nagehan Gürbüz, Biyotıp Hukukunda İnsan Onuru. İstanbul: On İk Levha Yayıncılık, 2014, s. 38-41; Bağçeci, s. 9-18.

[viii] Aleksandra Kafyrova,The Doctrine of Somatic Human Rights in its Constitutional Projection, National Research University Higher School of Economics, Jurisprudence Thesis, 2018.

[ix] In addition to the *Convention on Biomedicine, based on the principles regulated in "the Protocol on Prohibition of Human Cloning" and "Organ and Tissue Transplantation Protocol" dated 2002, the proposal to include a new right under the title of "the right to personal integrity" in the Constitution, see; Oktay Uygun, "Çağımızın İnsan Onuruna Yönelttiği Tehditler Karşısında İnsan Haklarının Önemi". Kamu Hukuku İncelemeleri: İnsan Hakları, Demokrasi, Hukuk Devleti, Egemenlik içinde; İstanbul: On İki Levha, 2011, s. 71Uygun, s. 71.

[x] İbrahim Ö. Kaboğlu, Özgürlükler Hukuku, İmge Kitabevi, 2002, s. 279; Elena Olegovna Tchinaryan/ Alla Andreevna Neznamova/ Georgyi Nickolaevich Kuleshov/Renata Romanovna Lenkovskaya/Pavel Valerievich Zhesterov, “Types of Somatic Rights and Their Legal Regulation”, Amozonia Investiga, V:9,(29), 2020, s.117-118.

[xi] Kaboğlu, s. 280.

[xii] https://www.medicinenet.com/somatic/definition.htm; https://www.dictionary.com/browse/somatic ; https://www.etymonline.com/word/somatic

[xiii]  lena Ivanii, Andrii Kuchuk, Olena Orlova, Biotechnology as Factor for The Fourth Generation of Human Rights Formation, Tarih Kültür ve Sanat Araştırmaları Dergisi, Cilt:9(1), 2020, s.1. 

[xiv] D.G. Vasilevich, “Somatic Human and Civil Rights”, 2017, https://vestihum.belnauka.by/jour/article/view/371?locale=en_US

[xv] Tchinaryan/ Neznamova/ Kuleshov/ Lenkovskaya/ Zhesterov, s. 118.

[xvi] Mara Almeida/Rui Diogo, “Human Enhancement”, Evolution, Medicine and Public Health, 2019, s. 183-185.

[xvii] Bağçeci, s.27-32.

[xviii] Nick Bostrom/Rebecca Roache, “Ethical Issues in Human Enhancement” New Waves in Applied Ethics içinde; (ed. Jesper Ryberg), Thomas Petersen and Clark Wolf. 2008, s. 24. 

[xix] Bağçeci, s.45-46.

[xx] An Ravelingien/ Guido Pennings, On the right to know and the use of double standards: response to open peer commentaries on "the right to know your genetic parents: from open identity gamete donation to routine paternity testing”, Americal Journal Of Bioethics, V:13(5), 2013, s. 33-41; Glenn Cohen, “Of modest proposals and non-identity: a comment on the right to know your genetic parents”, Americal Journal Of Bioethics, V: 13(5), 2013, s. 45-47; Kimberly Leighton, “To criticize the right to know we must question the value of genetic relatedness”, Americal Journal Of Bioethics, V: 13(5), 2013, s. 54-56

[xxi] Vardit Ravisky, “The right to know one’s genetic origins and cross-border medically assisted reproduction”, Israel Journal of Health Policy Research, V:6(1), 2017, s. 1-4.

[xxii] Heather Draper, “Why There is No Right to Know One’s Genetic Origins,” içinde Philosophical Reflections on Medical Ethics, (ed. Nafsika Athanassoulis), MAcmillan Publishing, 2005, s. 70-87; Ravisky, s. 1-4.

[xxiii] Dow Greenbaum, “Genomic Data Disclosure: Time to Reassess the Realities”, The American Journal of Biethics, V:13, 2013, s. 47.

[xxiv] Veronica Dobozi, “The Rıght To Know One’s Biological Identity”, Challenges of the Knowledge Soicety, V:3, 2013, s. 513; Odièvre v. France, Başvuru No: 42326/98, 13.02.2003; Jäggi v. Switzerland, Başvuru No: 58757/00, 03.07.2003; Godelli v. Italie, Başvuru No: 33783/09, 25.09.2012; https://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=

[xxv] Dobozi, s. 516.

[xxvi] Tarakçıoğlu, s. 49-50; Pedro Quintino, “Protection of Genetic Heritagein the Era of Cloning”, Revista Brasileira de Hematologia e Hemoterapia, 2012, V:34(6), s. 452-458.

[xxvii] Baxi, s. 207; Kevin Warwick, “Cyborg Morals, Cyborg Values, Cyborg Ethics’” Ethics and Information Technology, V:5, 2003, s.137.

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