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What Constitutional Protection for Freedom of Scientific Research? Author(s): Amedeo Santosuosso, Valentina Sellaroli, Elisabetta Fabio Reviewed work(s): Source: Journal of Medical Ethics, Vol. 33, No. 6 (Jun., 2007), pp. 342-344 Published by: BMJ Publishing Group Stable URL: http://www.jstor.org/stable/27719875 . Accessed: 05/01/2012 20:43
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342

ETHICS What constitutional research?


Amedeo Santosuosso, Valentina

protection
Sellaroli,

for freedom of scientific


Fabio
JMed Ethics 2007;33:342-344. doi: 10.1136/ime.2007.020594
European panorama, to freedom and Northern levels at a same several of science: the

Elisabetta

s freedom tional this American level?

of

research No

protected answer obvious as European systems

at can

the be

constitu given Northern unequi to

in the summary, American constitutional of protection first basic are level, given this

In

question, constitutional

and are not

freedom

receives

vocal and the topic has not been discussed deeply


enough. at Looking and Northern immediately to deal the one the constitutions of some American note with hand, have of scientific ends up no that countries, are there of European to it is possible two essentially research. in the US,

protection given to all other fundamental rights included in the genus of freedom of thought and
expression; specific for such and at a second level, we could find a expressed a fundamental constitutional freedom; and recognition at a finally,

ways On

freedom in

scientific and

possible
promoting

third

level,

the

State

is engaged

in

Canada

scientific

research.

constitutions freedom such

specific research, having

provisions with the

to protect result that as a

OBSERVATIONVERSUSMANIPULATION
The different ways
scientific some research. In Canada, specific interesting observation field. those countries, freedom such of as in the does is an US not and have in of research the crucial

freedom

to be protected

specific aspect of the wider freedom of thought and expression (protected by the First Amendment
of the US countries' European research instance, states are that free", Constitution). constitutional ones, and article "Art article that expressly teaching 5 of and 33 "The the On the other systems, recognise arts and German research Italian and hand, other mainly of freedom science. Constitution and teaching Constitution1 as well as x For

in which
affect

constitutions

regard

their way issues related

of dealing with to freedom of

where

science there

legal protection, on debate

the

science, of the arts

establishes

sciences

their teaching
Slovenian scientific guaranteed". Within research

are free" and article


states and artistic that endeavor

and manipulation to some According interpretations, freedom of scientific research under

relationship in the

ongoing between scientific

59 of the
of be shall

protecting the general

Constitution

"Freedom

provision on freedom of expression (in the US Constitution, the First Amendment) implies giving
constitutional in merely the diffusing ing interacting research protection observing collected them. implying to activities consist only natural and phenomena not while information, Consequently, a manipulation every of its

this

second

group, whereas

some

constitutions

limit their protection


scientific laws research, engage

to the provision of freedom of


other in fundamental and Italian promoting the "The

with activity

supporting Constitution, promotes technical Constitution, rities technical interest" shall

governments For it. which

example, states that

object (and genetic research is at the forefront) would not be protected by the First Amendment
because of its nature of active intervention and

cultural research"

development

and

Republic and scientific the Spanish autho and general Greek that are free, It

manipulation
American idea and of

(of living organisms).


Commission in paragraph that research, research of the

The Bioethical
received dedicated "most involves currently experi than of as this to

according promote research (article whose research for 44)

9), (article to which science the and, article and their 16 and benefit also,

Presidential stated, scientific biological

"public scientific of the

freedom controversial mental

See end of article for


authors' affiliations

Constitution, art, and has science, their to be

establishes teaching for the the

manipulation theoretical exploration objects.

rather living matter, or mere observation as much

natural

It is therefore

action

promotion

is mandatory that often

State.2

Correspondence A Santosuosso,

to: Corte

to

stressed, however, is research promoting the constitutional position is not of who

commitment

underestimated because benefit the from

di Pavia, Centro

Milan, d'Appello,Milano (I) Universitadegli Studi Italy;


di Ricerca

within

debate, should

corresponding this promotion be does such Besides, future, science claimed not

Interdipartimentale European Centre for Life Health and the Sciences, Courts (Presidente), Pavia, Italy; amedeo.santo suosso@unipv.it Received 29 January 2007

so plainly or likely to visible initiatives. this However, by political diminish the political that importance covers at the constitutional the fact that level. in the cannot a art, for exclude

a reference we such and

to Costituente discussed the opportunity to protect freedom of provision explicit Some were critical about the possibility scientific research. a part of the constitutional text to liberties of of dedicating culture and thought, considered different from the traditional constitutional doubted the need of consecrat rights. Others such an activity that is free in itself, so ing too gravely its own value. At last, the importance of letting diminishing the social be free from the fascist cultural community The Assemblea an introduce subjection Constitution science and article prevailed, was introduced, protecting and their teaching as a means 33 of the freedom Italian of art and

fundamental and of their in

right teaching) case the

of (freedom will become of evident

Accepted 29 January2007

important, discrimination.

example,

cultural and spiritual growth. More inAssemblea took place Costituente

of assuring human the debate that about can be seen inChieffi.

www.jmedethics.com

Constitutional

protection as much

for freedom creation as

of

scientific It

research continues

343

expression,

inquiry". have the

by

moral

and

material

interests

emerging

from

any

scientific,

asserting
form of knowledge

that such an activity could hardly be classified as a


expression: in any "Scientists way may right to pursue in they want cognitively, intellectually," to concrete "but when it comes action conduct far, and the On First the Amendment other hand, "con

literary or artistic production is unequivocally recognised by the Universal Declaration of Human Rights 1948, Article 27: (1) everyone has the right to freely participate in the cultural life of
the community, advancement protection scientific, any author. The of to and the enjoy its benefits; and arts and to share the in scientific to the from is the and has (2) everyone interests material right

one observer, argues the that becomes lab, protection would science": not for that

is

far weaker".3

the moral

freedom of manipulating
be absolute "Something

reality using any kind of technique


with acceptable freedom simply of because

it is technically This opinion distinguishing cially when less, because with this of

if compared is not morally 4 For

or artistic literary production On Economic, International Covenant

resulting of which he Social

Cultural Rights, New York,


States parties to the present

1966, Article
Covenant

15 states:
the

(1) The
right of

possible". can be criticised. between referred it

recognise

observation to basic research,

it can be example, and manipulation, is conceptually conduct research

said

that espe

everyone: (a) to take part in cultural life; (b) to enjoy the benefits of scientific progress and its applications; (c) to benefit
from the resulting he which economical, However, of the moral and material interests protection or artistic from of scientific, any literary production is the author and by the International on Agreement social and cultural rights. the most used to be balanced concept frequently

interacting it (using is a form construction between of the

to possible of research the object

is not

ground without

effective interaction of the

and thus "manipulating" Even the simple observation metaphor). and therefore, after all, a manipulation/ the not contraposition stand the test is no that looks and both vice breaking are more like versa. a

observation facts. between

Furthermore, object. and manipulation does research

with
sciences

freedom of scientific
is "human dignity". 13 free establishes

research
An

in the field of biological


starting arts and point scientific the of in

interesting

In scientific

point

likely manipulative, continuum: each Each

activities speculative research because

there activity, and activities in itself

this field is the European Union


which research Presidium, in article shall be of constraint". as the

Fundamental
that, The "The

Rights Charta,

of stage theoretical-observational

the other phases phase implies scientific research includes and more

recognised

authentic

notes of explicative official explanation

authentic

practical-manipulative also of chemistry answer has and other

the whole Charta, states that "This right is deduced primarily from the right to freedom of thought and expression" and that
"It is to be exercised having is regard to Article 1 [...]". Article 1 is

aspects
think of scientific It has

in different proportions
the biological sectors). to be noticed to a sciences, no

from time to time (let us just


and

entirely
"Human

dedicated
dignity Constitution, and

to human
inviolable.

dignity
It must

and
be

establishes
respected

that
and

that

clear

legal

yet

been

protected".
German

This provision

finds its origin


that

in Article
"Human

1 of the
dignity is

given to this interpretation, which


and leads serious outcome?namely,

is both highly controversial


the discrediting of

establishing

inviolable. To respect and protect


authority", and cultural of Nazism.

it is the duty of all state

biological
constitutional

scientific

research
A

and

totally excluding
of weakness a clear and

it from
in the of

protection.5

clear

awareness

it plainly has reason its historical in the political of Germany climate out from the era just coming

observation-manipulation freedom of scientific constitutional of than and thought the present studies. liberal legal

distinction research Freedom societies and political seem of

affirmation in

to be scientific

lacking research, more seems

several freedom

are much literature

inter-related to consider.

Once this is clear, we cannot that concepts of help noticing are elusive and human and hardly definable.6-8 dignity dignity In constitutional the philosophical about terms, legal question

what

dignity is and how it can be defined turns into the following: Who has the power or the right to define human
State, doctors importance scientists, The representative or anybody of this political else? question and institutions, its answer churches, is

FREEDOM OF SCIENCE AND HUMAN DIGNITY


In countries protected debate. and safety, where freedom of scientific issues research are at constitutionally, The crucial point fundamental property of intellectual different is how liberties rights freedom the is expressly centre of of research as all public human to balance and and

dignity?

strictly

freedom rights, most such of

other

dignity.
In the light balancing that of research, release of

related to how the relationship between human dignity and freedom is set up. If dignity encompasses liberty (so that it is correct to say that liberty is included by dignity), then whoever defines human dignity has in reality the power of limiting
On if we the contrary, liberty. conceived without freedom", essential attribute of freedom believe human and the that "no dignity point can dignity becomes of view be an

genetically

modified
approach attention

organisms

with

public

safety

is the

precautionary we must draw from more

it appears and implies important conceptual A principle, in fact, is not usually and consequences. negotiable the most is that it has a general effect likely outcome paralysing on of freedom research. On the that contrary, by saying scientific tionary research, approach, a socially on especially it becomes applied an of research, internal needs limit a precau to research

precautionary relevant than

In this connection, first. emerges the necessity to avoid towards sliding to principle. The is difference approach

totally

changes. An
cannot her be dignity From is the this rule

idea of human

dignity conflicting with


freedom only freedom needs human be of free anybody subject scientific stronger

freedom
loses is the his/ one

because without given, as well. the Therefore, second any of view, that research

who has the power to define human dignity for himself/herself.


point possible than of of research and more and limitation can

specific limitation "not

arguments to freedom

activity, perspective

way prudent a balance is possible, freedom of feature of

in this research: conducting no detrimental with on effects

and society Another rights, possible It has

research. concerns great that attention intellectual because core see property of their

This principle the plan of our life to suit our framing as we of doing to such consequences character; like, subject from our fellow-creatures, follow; without may impediment and pursuits; of

to harm

others".

One fair dignity. found in the principle of tastes "requires liberty own as so

important

generally economic

deserving outcomes.

to be emphasised is authorship regimen rights own one's talent recognised).

the

real

of the

the

patent of of

to (the right Such a right

products

to the protection

"For in the recent Italian law on assisted (Law example, reproduction it has been number 40/2004), in article 1, that the product of introduced, fertilisation should have the same rights as the other subjects involved in the to raise it to the process, procreation dignity of a third party that cannot be harmed.

www.jmedethics.com

344 long as what we


should However, problem are the think our

Santosuosso,

Sellaroli, Fabio

do does not harm


conduct foolish, to harm arises can harm as

them even though


perverse, or not does

they

not the principle as another problem others?" and "How more

others

wrong".9 solve every "Who

There is no doubt that science and law do not have the same reciprocal relationship and the same position in society in all countries and geographical realities, but the fundamental
questions tion, new difference and in Commission Italian we fact, ask the report law ourselves are common. On American closer examina Presidential the the above-mentioned states on

in Chinese be defined?".11

boxes:

Finally, the problem of who has the power to define dignity


becomes as monopolists research in critical and the when complex of dignity, areas act which institutions, powerful are both the scientific against stem embryonic of the individual cell research) in matters of

not from different principles assisted However, procreation. report aims researches to establish should be whether

is that

the American specific whereas

autonomous

(mainly decisions

to what

extent

publicly

funded,

so not
research, law

life and death. The balance


the power of the institutions

shift from the individual rights to


has important consequences on

limiting
is forbidden

the possibility
in Italy, whatever under sanction.

of private
is not There

citizens
expressly is a great

sponsoring allowed by

both the conceptual and the juridicial levels. Rights


protecting look like

difference
considered

between

lack of public
criminalising that scientific

funding
it. freedom realise

for what
deserves fundamental And we

is
a

from wrongs

and a wrong
constitutional in

theory
provisions several European from wrongs"10 explicitly countries

In a historical

not worthy, and we In conclusion, believe democratic

perspective, freedom of research example

a typical

constitutional deeper for our activities

consideration

to fully system

of "rights it is essential

development. Health and

emerging

of
error of in

Nazism
that led

during
opinion,

the

Second World

War.

would
the European

like to close with


Network for which as

the fundamental
Life Sciences, states: "To be

Following
identify In the case

inspiration
the

of the
Courts is as

Dershowitz's10

freedom

to affirm society of scientific research,

to correctly a freedom or a right. the error out is clearly by Nazi think made

identifiable doctors we have in to so in

(www.unipv.it/enlsc) much antiscientific

to be uncritically

science against pro science".

experimental concentration be precise unacceptable, on

practice in eugenics. and camps this point and understand whoever promoted

carried

We what

Authors'
Amedeo degli

affiliations

eugenics

it.11 What

is unacceptable thalassaemia

eugenics
because

is not
a mass

the fact of it being


prevention campaign

a public health
against

Corte d'Appello, Milano Santosuosso, (I),Milan, Italy; Universita Studi di Pavia, Centro di Ricerca Interdipartimentale European Centre

policy, is

would

also be such a public health

for LifeSciences, Health and theCourts (Presidente),Pavia, Italy i di Torino (I), Valentina Sellaroli, Procuradella Repubblicaper Minorenni
Torino, Sciences, Elisabetta European Centre for Life Italy; Centro di Ricerca Interdipartimentale Health and the Courts, Universita di Pavia (I), Pavia, Italy in Diritto Costituzionale, Universita Fabio, Dottoranda degli

policy. But eugenics

more. It is a coercive health public policy. Removing something one of these to exactly terms understand it makes impossible of our rights and liberties what the focal and real fundament European exactly case of integrity More new citizens understand eugenics, of women is. At what it is the same is the the time, error not itmakes to be it impossible repeated: of the personal about

as to

Studi di Milano (I), Milan, Italy


Competing interests: None.

in the

coercive

violation

and men. some scholars the medical (eg, a form sex have started new talking a to by that

REFERENCES
so-called eugenics, hoping made available and others), and 1 Chieffi L. Ricerca scientifica e tutela della persona. Napoli: Edizioni Scientifiche Italiane, 1993:28. 2 Comba ME. Diritti e Confini, Dalle costituzioni nazionali alia Carta di Nizza. Torino: Edizioni Comunit?, 2002. 3 The President's Council on Bioethics. The monitoring of stem cell research. A DC, 2004. http://www.bioethics.gov (accessed 16 Mar Report. Washington, 2007). 4 Congregazione per la Dottrina e la Fede. Donum Vitae, Introduction, n 4, quotation from Roberto Colombo in L'Osservatore Romano, Weekly Edition in 2003:9. English, 1October 5 McDonald PB. Government regulation or other "abridgements" of scientific research: the proper scope of judicial review under the FirstAmendment. Emory Law 2005;54:979-1091. 6 Caulfield T, Chapman A. Human dignity as a criterion for science policy. PLoS Med 2005;2:e244. 7 Caulfield T. Human cloning laws, human dignity and the poverty of the policy making dialogue. BMC Medical Ernies 2003;4:3. 8 Caulfield T, Brownsword R. Human dignity: a guide to policy making in the biotechnology era? Nat Rev Genet 2006;7:72-6. 9 Mill JS. On liberty. Oxford: Clarendon, 1985: chapter 1. teor?a laica dell'origine dei diritti. 10 Dershowitz A. Rights from wrongs?una Torino: Codice, 2005. 11 Santosuosso A. Corpo e liberta, Una storia tradiritto e scienza. Milano: Raffaello Cortina Editare, 2001:97-l 37.

danger it foresee science

recently, or mistake, in certain

in recent

years

techniques selection

individuals would be induced to utilise it under the pressure of


fashion reality, criticism lacks being or marketing, this fear of of some even more In of eugenics serious. a seems to be more likely attitudes and contemporary psychological element of the old eugenics: characterising a new eugenics policy. The paradox is that the new

the negative a State coercive

eugenics aims to protect individuals from being conditioned by allegedly imposed social models, but it ends up justifying laws,
such the under eugenics as the Italian law on assisted correct approved severe sanctions. (and the in which way In doing so, related individuals' reproduction, must people the opposition turns choices) establishing reproduce, to the new into an old

eugenic legislation founded on the illiberal assumption that only the State knows what is the right thing for citizens to do in
their private lives and in their bodies.

www.

?medethics.com