Introduction
The linkages between health, human rights and ethics are now evolving rapidly in response to unprecedented events experiences and struggles. These include general issue of public health, the uncontrollable spread of HIV/AIDS epidemic, SARS and bird flu. Health problems exist in all countries. The alarming poor health conditions of millions people in developing countries is a main obstacle to development. Developed countries also face health care problems of their own. Yet, what developing and developed countries have in common is the growing interconnection between problems and ethical issues pertaining to human rights. Human rights also include right to health and other related rights.
The extraordinary development of biotechnology has unprecedented impacts on individuals' live and society and raises a host issues whether they be human reproduction, beginning and end of life; biomedical research involving human subjects, human organ and tissue transplantation; the use of embryonic stem cells in therapeutic research, etc. Such evolution transforms the relations between medical science and human rights to the extend that the scientific progress influences legal norms; conversely, law must be adopted to govern the right conduct of biotechnology activities. To enact such legal norms, fundamental human rights principles and bioethics must be taken into consideration.
Human rights create obligations, usually on government to protect human dignity and integrity from abuse and injustice by regulating relationships between the state and individuals or groups. On the other hand, bioethics address two fundamental questions, namely what individuals and communities should do, permit, tolerate or prohibit in biology, particularly when new development affect the future of human beings, and how decisions should be made to determine mandatory, permissible, tolerable, or prohibited conduct .
Ethics and human rights derive from a set of quite similar, if not identical, core values. It is, therefore, appropriate to consider human rights and ethics as a continuum . Transforming bioethics into legal principle enhances human rights protection.
Right to health as human rights
Human rights, as part of international law, are rights to which should be entitled every human being, irrespective of race, religious or political beliefs, legal status, economic status, language, color, origin, gender and ethnicity. The international community has developed a large number of human rights instruments setting out various principles and norms , and these instruments further contribute to promoting human dignity and integrity on the basis of equality and non-discrimination.
Contained in numerous core international instruments ,.the right to health is a fundamental human right which is based on a broad definition that encompasses medical and public health perspectives . The Covenant on Economic, Social and Cultural Rights of 1966 was the first Human rights treaty to require State party to recognize and to realize progressively the right to health. Moreover, the broad definition of health implied by the right to health in article 12 of the Covenant covers both the curative and preventive aspects of health. This dual aspect corresponds with the distinctive perspectives of clinical medicine and public health, both of which have influenced how the right to health has been developed. Whereas clinical medicine has traditionally focused on the health status of individuals, public health has focused on population and to guarantee conditions under which people can be healthy and remain so .
Modern biotechnology and right to health
The development of modern biotechnology has unprecedented impacts on individuals' lives. The scientific advances in the fields of biology, medicine and biochemistry have undoubtedly brought many benefits to humanity through improved health and medical care and helped the extend life expectancy. At the same time, it had increasingly been recognized that these scientific advances raise ethical questions. As a result, potential uses of modern knowledge about human biology could benefit or threaten various rights embodied in the international legal instruments, including International Covenant on Civil and Political Rights, namely the right to life (art.6), the right not to be subjected to medical or scientific experimentation (art.7), the right to security of the person (art.9), and the right not to be subjected to arbitrary or unlawful interference with privacy, family, home or correspondences (art.17).
Existing international human rights treaties even provide guarantee of human dignity and fundamental human rights and freedom. Our society needs more specific rules to regulate scientific and technological innovations, based on the process of reflection over ethical issues raised in our relationships with other living organisms. The consideration of ethical issues in these spheres includes health, environment, and the use of technologies that affect life. Bioethics aim therefore on the one hand to ensure that progress resulting from this benefits humanity as a whole without breaching the rights; on the other hand, to identify rationally and responsibly the social and cultural implications of science and technology which concern, among other things, to health.
Bioethics principles as guardian of right to health: Draft declaration on Universal norms on Bioethics
The search for common responses to the bioethical issues is a laborious challenge but possible because international human rights law presuppose that fundamental rights transcend cultural diversity. Bioethical principle should be elaborated in the light of the fundamental rights in the Universal declaration of Human Rights of 1948. A large number of non-legal biding texts such as the Nuremberg Code of 1947, the Declaration of Helsinki of1964, The International Guidelines for the Bioethical Research Involving Human Subjects of 1992 have established rules for protection of persons involving in biomedical research. At the regional level the existing conventional instrument is the Council of Europe's Convention on Human Rights and Biomedicine of 1996.
UNESCO's draft declaration on Bioethics adopts the bioethical principles in form of general principles or human rights. From the point of view of the rights to health, States, medical practitioners and other health professionals are expected to observe the following bioethical principles in promoting and protecting the right to health.
-Human Dignity and Human Rights Considered as the most important principle in international bioethics, this concept aim at guaranteeing human dignity, which seeks to avoid the abuse of human being. Indeed, the interest and welfare of human beings should prevail over the interest of science or society. However, this principle cannot be simply invoked to solve bioethical dilemmas in particular cases without taking into account other rights such as informed consent, body integrity, non-discrimination, privacy, confidentiality, solidarity, justice and equity
-Equality, Justice and Equity Equality implies that all persons must be treated equally in a similar circumstance, whereas equity seeks to correct unfairness. Justice plays an important role in bioethical issues, for instance, the decision that public health sector makes allocating budget in health care service.
-Benefit and Harm This principle is based on the concept of proportionality. Any medical/scientific practice or decision must seek to benefit the person concerned and to minimize the potential harm that may result from that practice or decision.
-Respect for Cultural Diversity and Pluralism Cultural Diversity refers to the various ways in which the cultures of different social groups find expression. The ethical standard must be interpreted and adapted in conformity with the culture or religion of each society but should not be in contrary to human rights and fundamental freedoms.
-Non-Discrimination and Non- Stigmatization Unlawful, unfair or unjustifiable discrimination and stigmatization based only on any ground such as gender,. age, ethnicity, color, religious, sexual orientation or their status should be prohibited in health care, biomedical research and public health policy formulation.
- Autonomy and Individual Responsibility Autonomy and individual responsibility reflect the rights to make individual decisions while respect the autonomy of others.
- Informed Consent This principle is based on the right of an individual to self-determination. Unless emergency or incapacity render impracticable, an intervention in the health field can only be carried out after the person concerned has given free consent after understanding the nature of the intervention and its potential risks.
- Privacy and Confidentiality Individuals are entitled to the right to privacy. The respect of person's health information provides a claim of non-interference. However the wishes not to be informed should also be respected. Any information associated with an identifiable person and stored or processed for the purposes of research or other purposes must be held confidential and will not be disclosed to third persons in the conditions set by law.
- Solidarity and Cooperation Bioethics not only guarantees individual rights but also recognizes the importance of solidarity. The idea of social protection and fair opportunity constitutes the core principle governing policy making. In planning health care, special attention must be paid to social consideration such as the inequality between the rich and the poor and the inaccessibility of some vulnerable groups to quality health care.
- Social Responsibility Health protection by bioethics requires not only individual rights but also social responsibility to ensure that progress in science and technology contributes to justice, equity and the interest of humanity.
- Sharing of benefit Benefits resulting from scientific research are worthwhile only when they can be shared with society as a whole and among countries, particularly with developing countries. Benefits may be in the form of 1) assistance to the persons taking part in the research, 2) access to quality health care, 3) provision of new diagnostics and facilities for new treatments or medical products stemming from the research,4)support for health services, 5) access to scientific and technological knowledge, 6) capacity-building facilities for research purposes, or 7) any other form consistent with other fundamental principles. Such sharing will in practice take place within the framework of international law and internal law relating to human rights, public safety, prevention of crime, etc.
- Responsibility towards the Biosphere Human beings are an integral part of the biospheres and they have responsibilities towards others forms of life. Any decision or practice should be made with the safeguard of interests in biodiversity and the biosphere that extend beyond the present generation.
Obligation to respect, protect and fulfill the right to health in light of Bioethics
While international protection of human rights is crucial, national implementation makes them effective in local setting. In general, international declaration cannot legally bind the State (soft law). How ever, in case of the (draft) Bioethics Declaration, two hypotheses could be proposed. On one hand, the principles on bioethics has already been established in various international documents and has been implemented in many countries; this could be considered as evidence of general practice and accepted as international customary law in some extent. On the other hand, the declaration has it role in the series of international instruments for the human rights protection as Universal Declaration of Human rights of 1948, whose legal force, originally non-biding, is now recognized as international customary law.
Bioethics principles are undeniably in the line of human rights protection and provide the elements to protect the human dignity and fundamental rights end freedom States have an obligation to respect, protect and fulfill the right to health, each of which subject to obligations of conduct and obligations of result.
- Respecting the right to health means that States refrain from undertaking action that would restrain individual's ability to enjoy right to health, by means of introducing policies, laws, programs or actions which are contrary to bioethics principles
- Protecting the right to health applies to States which have the obligations to makes efforts to minimize risks to health to take all necessary measures to safeguard the population from violations of the rights to health by third party. States are not responsible for the acts or omissions of private sector, but responsible for taking measures ensuring non-violation the rights of individuals and communities.
Final remarks
The problem of human rights protection relating to biotechnology activities call for universal standard setting. Recently, international organizations such as the Council of Europe, the United Nations and UNESCO and a large number of NGOs have actively contributed their efforts to the elaboration of international principles on bioethics. This relatively new legal discipline is consistent with human rights. The protection of human rights and the rights to health in particular, by means of international instrumentalization of bioethics, seems to be an appropriate approach. To reach a universal consensus in this area is challenging task because it is impossible and unfair to impose detailed legal rules relating to controversial biotechnology issues on culturally diverse societies.
The draft Declaration on Bioethics that we now have which is concise in it formulation, pluralist in its approach and also general in its principle, can become a new common standard in the field of human rights protection.
B. Mathieu, G e nome humain et droits fondamentaux, Ecomomica, Paris, 1999.
R. Cook, B. Dickens and M.Fathalla, Reproductive Health and Human Rights. Integrating Medicine, Ethics, and Law, New York, Oxford University, 2003, p.65.
When adopted as declarations , recommendations , principles , or guidelines , they have no biding legal effect but can be customary international law. But when adopted as international treaties-however be called: treaties , conventions , covenants , or protocol s, they generate legal biding effect to the states party .
Constitution of WHO, Covenant on Economic, Social and Cultural Rights 1966, Convention on Elimination of All Forms of Discrimination Against Women 1965,Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Convention on the Rights of the Child 1989, International Convention on Protection of the Rights of All Migrants Workers and their Families1990.
See. General Comment 14, Rights to health, Committee on Economic Social and Cultural Rights, paragraphs 9 and 11.
1 The States parties to present Covenant recognize the rights of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2 The steps to be taken by State parties….to achieve the full realization of this rights shall include those necessary for:
a) The provision for the reduction of the still birth rate and infant mortality and for the healthy development of the child;
b) The improvement of all aspects of environmental and industrial hygiene;
c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
d) The creation of conditions which would assure to all medical services and medical attention in the event of sickness
J. Asher, The Right to Health: A resource Manual for NGOs, Commonwealth Medical Trust, 2004,p.18; J.Mann, ‘Medicine and Public Health, Ethics and Human Rights' Hastings Center Report, 00930334, May/July1997, vol.27, Issue3
Articles 4-15 of Preliminary Draft Declaration on Universal Norms on Bioethics, see. UNESCO, International Bioethics Committee, SHS/EST/CIB-EXTR/05/CONF.202/2, 9 February 2005;. . UNESCO, Explanatory Memorandum on the Elaboration of the Preliminary Draft Declaration on Universal Norms on Bioethics, SHS/CIB-CIGB/05/CONF.202/4,21Febuary 2005, pp. 5-15.
Roberto Andormo, Biomedicine and international human rights law: search of a global consensus, Bulletin of World Health Organization, 2002,80(12), p.960.