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Law and Bioethics

Preprint · February 2023

DOI: 10.13140/RG.2.2.29951.48800

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Artur Victoria
Universidade Autónoma de Lisboa Luís de Camoes
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Law and Bioethics
Artur Victoria

The legal problems of the opponent action of biotechnology to human life emerge
from the boundary zone between the advanced point of science and the tradition
between the legal and ethical.

There are several possible relationships between Ethics and Law:

1 - The absolute of Positive Law: the law made by the State authorities and a set of
norms and axiomatic principles.

That universe is autonomous and self-sufficient; it always has an answer for everything
that is put to it. If Positive Law counts, everything else is countless.

Consequence: the greatest atrocities of this century were committed.

One of the legal constructions that correspond to this is the pure theory of Kelsen law.
It is pure because it excludes principles that are not are legal imperatives. However, it
does not recognize the Positive Law completeness because, when applying the law,
there is a duty given to execute the norm, but there is always something new that it
introduces, and that novelty and always the responsibility of those who apply the law
(normative positivism).

The absolute of Natural Law: they are trans-positive orders. The positive norm is only
valid if it is in accordance with God, reason, nobility, or values brought by history. The
last construction of this type is the Marxist construction of law. Positive law is only a
derivative of social relations. The right of the authorities outside does not count.

This ancient vision, from the time of the Age of Gods is present today in religious
fundamentalists, such as the autocratic State of Iran. The Democratic State, the moral
and cultural structure that made the Modern Era of the West, is being perverted. Only
what is in the Bible, in the Koran, etc. is right.

2 - Coordination of the two: there are many principles that are common to the law and
ethics, and the ethical minimum that has to exist in the legal Order. These are
principles that are unavailable to national legislators, such as the idea of justice, giving
each one it’s due, respect for others, etc. They translate respect for the dignity,
freedom and autonomy of each person. Exponents: Kant and Hegel.

The Juridical Order open to these values is fragile, but it serves something that gives it
firmness, which is the eminent dignity of each person.

Art 1 of the Constitution of the Republic is the ultimate matrix of Our Legal Order.
 In recent years, man has unveiled deeper lines of our genetics and widened the range
of possibilities;

There were changes at three levels:

1 - At the beginning of life, such as research on embryos, in the course of life, for
example with clinical trials, tests to detect diseases in embryos, and the collection and
tissue transplantation, at the end of life with euthanasia, dysthanasia, the (artificial
extension of life), the genetic identity should be protected because it has already been
heard of the creation of artificial beings to collect organs in their bodies for
commercialization.

2 - There’s is one only legal perspective on bioethics, there are several. This brings
several legal consequences: The Constitutional Law should or should not define this or
that good as a fundamental good, to be protected.

In the International Law when States agree to regulate by example the embryo trade.
Also in criminal law there is relevance of this matter as there are legal types of crime.

Administrative law, for example, is regarding the civil liability of a doctor, and even the
civil liability of the State.

In Civil Law there are problems of affiliation, succession, civil liability, in contracts such
as womb hire.

Each of these legal areas has its dogmatic structure itself and there are many ways to
protect legal assets other than criminal punishment. In each case, the Legal Order
chooses the most appropriate means.

3 - There is a veil of ignorance of the Law on the practical issues of bioethics. There was
a period when it was thought that law had the right solution for every problem, and
this was just one. It was the illusion of legal-positive logic’s. Today it is known that the
Legal Order is not made by a perfect entity and that the operator of legal science is not
an Hercules capable of uncovering everything.

There is no place for the logical fullness of the Legal Order; there is not a single
solution but a limited one.

Normally, bioethics problems are solved by escaping for the procedural and
institutional: cross-curricular rules of procedure composed of biologists, doctors,
jurists, who discuss and try to regulate. Hence there is everywhere Bioethics
commissions. Our legislation is poor in this matter. The legislator should only come up
with strong solutions when this is absolutely necessary.

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