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The Embryo and its Rights: Technology and Teleology

Published online by Cambridge University Press:  06 March 2019

Bert van Roermund

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Why do fundamental rights and market freedoms attract and repel each other? Why can they neither be together nor remain separate? This paper argues that at least part of the explanation is that they are each governed by different types of “logic.” They are at the fault-lines of different discourses. Market freedoms are promoted in a technological discourse, fundamental rights in a teleological discourse. The former are expressed in an observational view from above, while the latter embody the view of a first-person agent. Travelling back and forth between these two discourses, as legal authorities like the European legislator and the Court of Justice of the European Union (CJEU) often have to do, is an ambiguous enterprise. It may create opacity, but it may also bring clarity to the otherwise muddy waters of a “common” (now: “internal”) EU market under capitalist conditions. Much is dependent on their ability to orientate themselves on a map that recognizes the poles of these discourses, technology and teleology. This paper contributes to drawing that map through analysis of a case study in patent law involving the concept of an embryo. Construed as “an autonomous concept of European law” the notion of an embryo will appear to be paradigmatic of alternative ways in which the two discourses may relate to each other.

Type
Lisbon vs. Lisbon Part I: Engaging the Fundamentals
Information
German Law Journal , Volume 14 , Issue 10: Special Issue—Lisbon vs. Lisbon , 01 October 2013 , pp. 1939 - 1958
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 See infra Part B.II (explaining the significance of this paraphrase).Google Scholar

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5 Communication from the Commission, Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth, at 3 (Mar. 3, 2010) (“We need a strategy to help us come out stronger from the crisis and turn the EU into a smart, sustainable and inclusive economy delivering high levels of employment, productivity and social cohesion. Europe 202 sets out a vision of Europe's social market economy for the 21st century.”), available at http://ec.europa.eu/eu2020/pdf/COMPLET%20EN%20BARROSO%20%20%20007%20-%20Europe%202020%20-%20EN%20version.pdf.Google Scholar

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7 Council Directive 98/44, 1998 O.J. (L 213) 13 (EC).Google Scholar

8 Id. at 18.Google Scholar

9 Id. (“On the basis of paragraph 1, the following, in particular, shall be considered patentable: … uses of human embryos for industrial or commercial purposes. …”).Google Scholar

10 This is the core of the more technical questions asked by the BGH, of which I quote only the first set here:Google Scholar

What is meant by the term “human embryos” in Article 6(2)(c) of [the Directive]?

  1. (a)

    (a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

  2. (b)

    (b) Are the following organisms also included:

    1. –

      – unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

    2. –

      – unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

  3. (c)

    (c) Are stem cells obtained from human embryos at the blastocyst stage also included?

Greenpeace, CJEU Case C-34/10 at para. 23.

11 See id. This is also a core phrase in the relevant German legislation that the CJEU considers, namely the Patentgesetz (Patent Law) and the Embryonenschutzgesetz (Law on the Protection of Embryos). It mentions, in particular, Paragraph 8(1) of the ESchG: “an embryo is a fertilised human ovum capable of development, from the time of karyogamy, and any cell removed from an embryo which is “totipotent,” that is to say, able to divide and develop into an individual provided that the other conditions necessary are satisfied. A distinction must be made between those cells and pluripotent cells, which are stem cells which, although capable of developing into any type of cell, cannot develop into a complete individual.” Id. at para. 12.Google Scholar

12 Id. at para. 25 (referencing further “Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; Case C 5/08 Infopaq International [2009] ECR I 6569, paragraph 27; and Case C-467/08 Padawan [2010] ECR I 0000, paragraph 32.”).Google Scholar

13 Id. at para. 26. This is in line with multiple uses of the phrase “an autonomous concept of European law” by the CJEU. See id. at para. 25.Google Scholar

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16 A later stage of embryonic development considered at a certain point in time, almost five days after fertilization.Google Scholar

17 Greenpeace, CJEU Case C-34/10 at para. 38.Google Scholar

18 Id. at para. 30.Google Scholar

19 Id. at para. 27. Compare id., with id. at para. 28 (“The lack of a uniform definition … would create a risk of the authors of certain biotechnological inventions being tempted to seek their patentability in the Member States which have the narrowest concept of human embryo … because those inventions would not be patentable in other Member States.”).Google Scholar

20 Council Directive 98/44, supra note 7, at 8.Google Scholar

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26 Greenpeace, CJEU Case C-34/10 at para. 32.Google Scholar

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28 Id. at 18 (“The human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions.”).Google Scholar

29 See id. Google Scholar

30 In daily life discourse, we often work with the idea of a goal (finis) causing or bringing about some action, knowing quite well that this very action will cause or bring about the goal as a result of the action. Scientific discourse, though, accepts only the second sense of causation.Google Scholar

31 See Council Directive 98/44, supra note 7, paras. 35–37 (describing the nature of the human embryo).Google Scholar

32 Note that “getting fertilized” can be conceived as one of the conditions for an ovum to develop into a human being, while, alternatively, “being a fertilized ovum” may also be conceived as a characteristic of the entity prior to any further conditions. For teleological discourse, this is immaterial. Even an ovum or a spermatozoid may be capable of such development, provided fertilization is one of the conditions. And, even more typically, the stage of “maturity” may be infinitely deferred, as even adult men will always retain some potentiality to discover ever-richer forms of human flourishing.Google Scholar

33 Immanuel Kant, Kritik der reinen Vernunft 75 (1781).Google Scholar

34 Moreover, it is a thoroughly modern one—which means (1) that it is already part and parcel of the way we think, talk, and behave; and (2) that we are at a distance from what teleology in the Aristotelian sense meant, much greater than we imagine.Google Scholar

35 Typically, some Christian denominations like Catholicism are in the habit of referring to “human nature” to get a moral angle on technological issues, ignoring that this very concept has been occupied by technology-driven natural sciences. See Litterae Encyclicae Lumen Fidei, Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation, available at: http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html (last visited Sept. 17, 2013).Google Scholar

36 Council Directive 98/44, supra note 7, para. 38 (emphasis added).Google Scholar

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38 It is only fair to say that I take my cue here from Charles Taylor's notion of “radical reflexivity.” See Charles Taylor, Sources of the Self: The Making of Modern Identity passim (1989); Cf. id. at index. What I think amounts largely to the same thing, from a too rapidly forgotten strand in philosophical thinking called “phenomenology.”Google Scholar

39 Aristotle, On the Soul III, 8 (1957).Google Scholar

40 Thus, Taylor's thesis “radical objectivity is only intelligible and accessible through radical subjectivity,” remains true if read inversely. See supra note 38, at 176.Google Scholar

41 Kiessling, Ann A., What is an Embryo?, 36 Conn. L. Rev. 1051, 1063 (2004) (emphasis added to indicate first-person use of the concept).Google Scholar

42 Note, again, that this narrative loses all meaning if it is transposed into technological discourse.Google Scholar

[I]f it is true that before being a person we were embryos, it is also true that before being embryos, we were a strange cell (certainly not definable as “embryo”) which contained two separate nuclei and a polar globule, and, before that, we were two cells that were partially united by a fusion of membranes, and before that we were two gametes, a spermatozoon and an oocyte. There is no doubt that we come from things very different from what we are, things that we cannot consider “our fellow man” and in comparison to which we do not feel we have to predispose rules of protection analogous to those that are due to people.

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47 A modern coil has many more contraceptive effects, but one of them is still “thinning the endometrium to make it more difficult for eggs to implant.” See Medic, The Mirena IUD, available at: http://www.medic8.com/healthguide/articles/mirenaiud.html (last visited June 4, 2012).Google Scholar

48 Compare the Merriam-Webster medical dictionary, an embryo in contemporary medical discourse is “an animal in the early stages of growth and differentiation that are characterized by cleavage, the laying down of fundamental tissues, and the formation of primitive organs and organ systems; especially: the developing human individual from the time of implantation to the end of the eighth week after conception.” After eight weeks, the organism is called a fetus. Merriam-webster.com, Embryo definition, http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical&va=embryo (last visited June 4, 2012).Google Scholar

49 Kiessling, supra note 41, at 1063.Google Scholar

50 Cf. Bert Van Roermund, Migrants, Humans and Human Rights: The Right to Move as the Right to Stay, in A Right to Inclusion and Exclusion? Normative Fault Lines of the EU's Area of Freedom, Security and Justice 161, 168 (Hans Lindahl ed., 2009).Google Scholar

51 Nomads just have a different definition of “their own country,” and they don't move to a foreign one. Cf. Hans Lindahl, Breaking Promises to Keep Them: Immigration and the Boundaries of Distributive Justice, in A Right to Inclusion and Exclusion? Normative Fault Lines of the EU's Area of Freedom, Security and Justice 137 (Hans Lindahl ed., 2009).Google Scholar

52 Laval Un Partneri Ltd. v. Svenska Byggnadsarbetareförbundet, CJEU Case C-341/05, 2007 E.C.R. I-11767; Int'l Transport Workers’ Fed'n v. Viking Line ABP, CJEU Case C-438/05, 2007 E.C.R. I-0779.Google Scholar

53 Karl Marx, Zur Kritik der Nationalökonomie—Ökonomisch-philosophische Manuskripte, in Frühe Schriftn Bd. 1 559 (Hans-Joachim Lieber & Peter Furth eds., 1971) (1844).Google Scholar

54 No wonder we see the CJEU wrestling, as Chiara Raucea's paper demonstrates elsewhere in this issue, with a notion of EU citizenship that travels back and forth between what humans need and what markets require. See Chiara Raucea, Fundamental Rights: The Missing Pieces of European Citizenship?, 14 German L.J. 2021 (2013).CrossRefGoogle Scholar

55 It would exceed the limits of this paper to elaborate that, in an important way, goods, services, and capital are not completely external to agents and what they hold in common. Suffice it to point here to the new awareness of the meaning of capital and the role of banks that the current financial crisis has brought about.Google Scholar

56 Greenpeace, CJEU Case C-34/10 at para. 53.Google Scholar

57 Id. at para. 30.Google Scholar