El problema de la responsabilidad por falsos positivos en el diagnóstico genético preimplantacional / The problem of liability for false positives in preimplantation genetic diagnosis

El incremento de la práctica de diagnósticos genéticos preimplantacionales, en el contexto de las técnicas de reproducción asistida, genera nuevos ámbitos potenciales de responsabilidad. El riesgo de comportamientos negligentes en la práctica de este diagnóstico puede concretarse en cualquier momento y generar, consiguientemente, el planteamiento de una reclamación de indemnización por parte de los sujetos afectados por los daños derivados de ello. Este trabajo se centra en analizar la respuesta jurídica que ha de darse a estas reclamaciones cuando se fundamenten en un error en el diagnóstico por falso positivo

The increase in the practice of preimplantation genetic diagnosis, in the context of assisted reproductive technology, generates new potential areas of liability. Any moment can crystallize the risk of negligent behavior in the practice of this diagnosis and it can therefore generate a claim brought by the subjects who suffer the damages derived from it. This paper focuses on analyzing the legal response to be given to these claims when they are based on an error in the diagnosis by false positive

Sobre la dignidad humana del mortinato y nasciturus. Un nuevo reto bioético a propósito de la STC 11/2016 y la jurisprudencia del TEDH / On the human dignity of a stillborn and unborn child. A new bioethical challenge before the Spanish Supreme Court Case Law 11/2016 and the ECHR Jurisprudence

En febrero de 2016, de forma inédita se falló un asunto concerniente a la bioética y el respeto por los derechos fundamentales de la persona concerniente a la prohibición de dar sepultura digna a un mortinato al que el derecho le negó su existencia por no superar unos límites desnaturalizados. Sin esgrimir una norma verdaderamente habilitante, sin cobertura legal y sin justificar la existencia de un riesgo real para la población o en beneficio del interés general, la administración pública española denegó el ejercicio de los derechos fundamentales a la libertad ideológica, de culto y a la intimidad personal y familiar. Afortunadamente, en esta ocasión el más alto interprete constitucional priorizó la dignidad humana a la codificación siguiendo escrupulosamente la moderna jurisprudencia del Tribunal Europeo de Derechos Humanos

In February 2016, Spanish justice decided - without precedent - on an issue concerning bioethics and the respect for the fundamental rights of the individual, in reference to the prohibition of giving decent burial to a stillborn, whom the law denies its existence for not reaching the established unnatural limits. Without wielding a truly enabling standard, without legal cover and without justifying the existence of a real risk to the population or the benefit of a general interest, the public Spanish administration denied the exercise of fundamental rights based on ideological freedom, of worship and personal and family privacy. Fortunately, in this case, the Spanish Constitutional Court gave priority to the human dignity instead of the codification following the latest European Court of Human Rights case law

Are Wrongful Life Actions Threatening the Value of Human Life?

Most courts around the world have been refusing wrongful life actions. The main argument invoked is that the supposed compensable injury cannot be classified as such, since life is always a blessing no matter how hard and painful it is.In opposition to mainstream scholars and the dominant case law, this article sustains that life must be distinguished from living conditions, the former being the real injury at stake, since some living conditions are so intolerable that in themselves they justify a compensation within wrongful life actions.

Preimplantation and prenatal diagnosis, wrongful birth and wrongful life: a global view of bioethical and legal controversies.

BACKGROUND: Prenatal diagnosis based on different technologies is increasingly used in developed countries and has become a common strategy in obstetric practice. The tests are crucial in enabling mothers to make informed decisions about the possibility of terminating pregnancy. They have generated numerous bioethical and legal controversies in the field of 'wrongful life' claims (action brought by or on behalf of a child against the mother or other people, claiming that he or she has to endure a not-worth-living existence) and 'wrongful birth' claims (action brought by the mother or parents against the physician for being burdened with an unwanted, often disabled child, which could have been avoided). OBJECTIVE AND RATIONALE: The possibility which exists nowadays to intervene actively by programming and deciding the phases linked to procreation and birth has raised several questions worldwide. The mother's right to self-determination could be an end but whether or not this right is absolute is debatable. Freedom could, with time, act as a barrier that obstructs intrusion into other people's lives and their personal choices. Therapeutic choices may be manageable in a liberal sense, and the sanctity of life can be inflected in a secular sense. These sensitive issues and the various points of view to be considered have motivated this review. SEARCH METHODS: Literature searches were conducted on relevant demographic, social science and medical science databases (SocINDEX, Econlit, PopLine, Medline, Embase and Current Contents) and via other sources. Searches focused on subjects related to bioethical and legal controversies in the field of preimplantation and prenatal diagnosis, wrongful birth and wrongful life. A review of the international state of law was carried out, focusing attention on the peculiar issue of wrongful life and investigating the different jurisdictional solutions of wrongful life claims in a comparative survey. OUTCOMES: Courts around the world are generally reluctant to acknowledge wrongful life claims due to their ethical and legal implications, such as existence as an injury, the right not to be born, the nature of the harm suffered and non-existence as an alternative to a disabled life. Most countries have rejected such actions while at the same time approving those for wrongful birth. Some countries, such as France with a law passed in March 2002, have definitively excluded Wrongful Life action. Only in the Netherlands and in three states of the USA (California, Washington and New Jersey) Wrongful Life actions are allowed. In other countries, such as Belgium, legislation is unclear because, despite a first decision of the Court allowing Wrongful Life action, the case is still in progress. There is a complete lack of case law regarding wrongful conception, wrongful birth and wrongful life in a few countries, such as Estonia. WIDER IMPLICATIONS: The themes of 'wrongful birth' and 'wrongful life' are charged with perplexing ethical dilemmas and raise delicate legal questions. These have met, in various countries and on certain occasions, with different solutions and have triggered ethical and juridical debate. The damage case scenarios result from a lack of information or diagnosis prior to the birth, which deprives the mother of the chance to terminate the pregnancy.

Ethical aspects of creating human-nonhuman chimeras capable of human gamete production and human pregnancy.

In this paper I explore some of the moral issues that could emerge from the creation of human-nonhuman chimeras (HNH-chimeras) capable of human gamete production and human pregnancy. First I explore whether there is a cogent argument against the creation of HNH-chimeras that could produce human gametes. I conclude that so far there is none, and that in fact there is at least one good moral reason for producing such types of creatures. Afterwards I explore some of the moral problems that could emerge from the fact that a HNH-chimera could become pregnant with a human conceptus. I focus on two sets of problems: problems that would arise by virtue of the fact that a human is gestated by a nonhuman creature, and problems that would emerge from the fact that such pregnancies could affect the health of the HNH-chimera.

What is the harm in harmful conception? On threshold harms in non-identity cases.

Has the time come to put to bed the concept of a harm threshold when discussing the ethics of reproductive decision making and the legal limits that should be placed upon it? In this commentary, we defend the claim that there exist good moral reasons, despite the conclusions of the non-identity problem, based on the interests of those we might create, to refrain from bringing to birth individuals whose lives are often described in the philosophical literature as 'less than worth living'.

Wrongful birth: clinical settings and legal implications.

'Wrongful birth' is a term used in the English legal system when describing negligence claims for compensation brought against hospitals where it is argued on behalf of parents bringing the claim that with appropriate treatment their child should not have been born. This paper considers the basis for such claims and the difference between claims brought where there is a healthy child compared to one where the child is born with a disability. Claims arising from failed sterilisations are reviewed as well as those due to an alleged failure to detect fetal anomalies on routine ultrasound scanning. In regard to the latter we review the findings of a major report looking at such claims in England, and we consider practical learning and risk management points that can help to reduce the chances of litigation.

How useful is the concept of the 'harm threshold' in reproductive ethics and law?

In his book Reasons and Persons, Derek Parfit suggests that people are not harmed by being conceived with a disease or disability if they could not have existed without suffering that particular condition. He nevertheless contends that entities can be harmed if the suffering they experience is sufficiently severe. By implication, there is a threshold which divides harmful from non-harmful conceptions. The assumption that such a threshold exists has come to play a part in UK policy making. I argue that Parfit's distinction between harmful and non-harmful conceptions is untenable. Drawing on Kant's refutation of the ontological argument for God's existence, I suggest that the act of creation cannot be identical with the act of harming-nor indeed of benefiting-however great the offspring's suffering may be. I suggest that Parfit is right that bringing children into existence does not usually harm them, but I argue that this must be applied to all conceptions, since Parfit cannot show how the harm threshold can be operationalised. If we think certain conceptions are unethical or should be illegal, this must be on other grounds than that the child is harmed by them. I show that a Millian approach in this context fails to exemplify the empirical and epistemological advantages which are commonly associated with it, and that harm-based legislation would need to be based on broader harm considerations than those relating to the child who is conceived.

Genetic counseling and tort liability: wrongful conception, wrongful birth and wrongful life

Esta es una investigación sobre la base de estudios de la Cátedra Interuniversitaria de Derecho y Genoma Humano, especialmente las notas de Aitziber Emaldi Cirion, acerca de el asesoramiento genético, sus consecuencias prácticas y jurídicas. En este caso, con la responsabilidad civil médica, a través de la acción: wrongful conception, birth y life. Así, se pregunta ¿hay responsabilidad civil médica derivada del asesoramiento genético? Para responder la pregunta, se trabaja con la responsabilidad médica. En conclusión, parece que puede haber responsabilidad civil del médico por la acción wrongful conception y birth, pero no en el caso de wrongful life la persona a nacer carece de autonomía para decidir nacer o no nacido, o nacido sin discapacidad (AU)

The investigation is based on the studies of the Inter- University Chair in Law and the Human Genome, especially on the Aitziber Emaldi Cirion’s notes about genetic counseling, practices and legal consequences. In this case, with the medical and tort liability through action: wrongful conception, birth and life. In this way, it will be asked: may medical liability arising from genetic counseling exist? To answer this question, it will be worked with the concept of the Medical Liability. In conclusion, it appears that there may exist Medical liability action on wrongful conception and birth, but not in the case of wrongful life, case in which the unborn child is in need of the autonomy of deciding to be born or not, or be born without disability (AU)

[ABORTION AND CHARTER FOR THE EMBRYO BETWEEN THE ANCIENT WORLD AND THE THIRD MILLENNIUM]. / DARE VOCE AI NON-NATI: ABORTO E STATUTO GIURIDICO DELL'EMBRIONE TRA TRADIZIONE IPPOCRATICA E DIRITTO CONTEMPORANEO.

In 2012 the Italian Court of Cassation recognized a young woman the right not to be born and a compensation for her Down's syndrome. Before her birth, her parents asked their gynaecologist for abortion in case he had found any patology affecting the baby. The clinical tests didn't reveal the syndrome, so, after the baby's birth, the doctor was sued for damages. A similar case had occurred in France, where the High Court affirmed that constitution is based on the right to live, not to die. A debate was opened, in which the hippocratic oath has been used to support the pro vita position. This article focuses on whether, when and why the hippocratic tradition allows abortion; when and by whom the embryo was considered to be a human being; if, according to the few sources we have, a charter for the embryo existed in ancient times.

Making sense of child welfare when regulating human reproductive technologies.

Policy-makers have attempted to frame the ethical requirements that are relevant to the creation of human beings via reproductive technologies. Various reports and laws enacted in New Zealand, Canada, Australia, and Britain have introduced tests for how we should weigh child welfare when using these technologies. A number of bioethicists have argued that child welfare should be interpreted as a "best interests" test. Others have argued that there are ethical reasons why we should abandon this kind of test. I will argue that at least some of the relevant policy can be interpreted as requiring those wishing to exercise their procreative liberty to have a reasonable plan to care and nurture any resulting child, thereby respecting the internal preconditions of that liberty. This interpretation of child welfare requirements answers some of the ethical worries about a child welfare test.

Physicians' duties and the non-identity problem.

The non-identity problem arises when an intervention or behavior changes the identity of those affected. Delaying pregnancy is an example of such a behavior. The problem is whether and in what ways such changes in identity affect moral considerations. While a great deal has been written about the non-identity problem, relatively little has been written about the implications for physicians and how they should understand their duties. We argue that the non-identity problem can make a crucial moral difference in some circumstances, and that it has some interesting implications for when it is or is not right for a physician to refuse to accede to a patient's request. If a physician is asked to provide an intervention (identity preserving) that makes a person worse off, then such harm provides a good reason for the physician to refuse to provide the intervention. However, in cases where different (identity-altering) interventions result in different people having a better or worse life, physicians should normally respect patient choice.