Dr. GIUSEPPE BATTIMELLI

National Vice – President of AMCI for South Italy

The theme ‘Bioethics, Biopolitics and Human Rights’, might seem at first sight somewhat academic, doctrinal and however far or fall exclusively within the competence of the experts.

Actually we believe that the unavoidable problems of bioethics affect each of us both as individuals and as community, and also that politics and State are indisputably interested in the search of a law, or at least of a regulation that defines the rights and duties towards issues of life and technoscience.

It is enough to think, to make concrete examples, how biolaw and biopolitics increasingly intervene today in sensitive and controversial issues about beginning and end of life (such as the legalization of abortion in the complex field of medically assisted procreation or in issues connected to euthanasia and palliative care), in the problems of organ transplantation, in the emerging issues of gender identity, in clinical experimentation, etc..

The present age is so much characterized by an expansion of individual rights that it has to establish new rights (which are often confused with subjective desires) that are claimed and you want met by the political and legislative power, which has to make responsible for them: the right to have a child, the right to have a child but only if he is healthy, the right not to be born if you are suffering from any disease or disability, the right to reproductive health (including the right to abortion), the right to prenatal diagnosis and preimplantation in the case of in vitro fertilization (even if it is directed to the elimination of the unborn child if ‘bad’, so-called ‘wrongful birth’ or ‘wrongful life’), the right to a dignified death, the right to a quality life, the right to refuse treatments (even when they are ordinary and proportionate), the right to euthanasia, the right to assisted suicide, the right to a free and unfettered scientific research, the (alleged) rights of animals, etc..

If it is true that bioethics is intended as a branch of moral philosophy, science of ends and not of means (in fact it wonders: What should we do? How should we act?), autonomous discipline compared to forensic medicine and medical ethics with its own epistemological status, then the bioethicist answers the question and wonders if all that is technologically possible is also ethically permissible (therefore he/she wonders about the categories of good and evil, lawful and unlawful).

On the contrary biolaw considers the human intervention on man and nature from the point of view of right and wrong and the biojurist instead wonders whether everything that biotechnology is able to produce, requires (and to what extent ) a regularization indicating the limits or prohibitions or vice versa the permits and concessions.

Here biopolitics intervenes and it should not be understood exclusively and very superficially as incorporation or translation into rules of what is inherent in life or death, but much more critically (and ambiguously), according to the conception of the French philosopher Michel Foucault who has proposed it in the seventies of the last century, as the exercise of power, any power (state, society, group, individual, etc.) on the personal and collective life or better yet on the body, in its inner management and utilization.

The established distinction of a biopolitics ‘on life’ or ‘for life’ is expressed therefore, theoretically and practically in the subtle but fundamental aporetic interventions: from a promotion and care of life itself up to the codification of its destruction.

The philosopher of law Francesco D’Agostino, referring to Giorgio Agamben and further back to Hannah Arendt, the German historical philosopher of Jewish descent, believes with good reason that the totalitarian regimes of the last century, with their tragedies, have their origin in biopolitical ideologies (and not vice versa), because of which the power, denying any human right, has justified the horrors of the concentration camps and allowed the ontological and consequently axiological annihilation of the human person, considered ‘bare life’, on which everything is permissible, even the physical destruction.

All this, according to this author, could by analogy and beyond the different contexts and different inspirations come true today in the laboratories of physicians and scientists when life is manipulated.

It is also to highlight the undoubted and well-founded different interpretation of biopolitics according to reference models that are certain political (libertarian, liberal, radical, public), but which are subject to various anthropological and philosophical models (liberalism, capitalism, utilitarianism, consequentialism, socio-biologism, speciesism, Marxist reductionism, ontologically founded personalism).

It is now incontrovertible that prospects, however alternative, are proposed about how bio-law and biopolitics should deal with bioethical issues: on the one hand, supporters of a ‘mild law’ or ‘no right’ on matters of life, taking into account the cultural pluralism of our society, on the other hand advocates of a simple opportunity to express and then legitimize all existing ethical standards, through the procedural regulation of personal self-determination, the only criterion for evaluation or moreover the advocates who feel that the political majorities, the opinion of the majority or the costumes of civil society determine ethics.

We believe that the problem is twofold and has an evident even if implicit connection: Is there an anthropological reference? Is the foundation of values ​​ objective and universal and not subjective?

Putting at the center of any consideration the human person, as unity of spirit and body, always subject and never object, subsistent being, that exists in and for itself, that has inalienable rights (first of all the right to life) arising from his dignity, on which neither the state, nor society, nor science, nor any another man is entitled to act, would allow us to reconcile and finally clarify in a personalistic way those lacerating and misleading dichotomies of modern culture, that is the distinction between human being and subject, person and individual, including those who consider the conceived, the embryo, the fetus, the unborn, a ‘not yet person’ and those who believe that the human being does not change in essence and value according to the phases of his existence; moreover between those who believe ‘no more person’ the patient in a vegetative state, the disabled, the mentally ill or the suffering from Alzheimer’s disease and those who, on the contrary, are certain that these are worth living lives.

In both cases, some believe that they are not ‘people’ but ‘human individuals’ who are not ‘yet’ or ‘no more’ rights holders even of the right to life.

So here is the possibility to establish a biolaw as a ‘right to life’. Biolaw as protection of the weak (embryo, handicapped, sick, old), based on solidarity, the common good, the social good, in short on the human good .

We believe that the knots of biopolitics and biolaw, in composing or mediating among the various values ​​in bioethics, can be untied or at least examined in the light of a shareable ethics which hinges on human reason, justice, recognition to man of what is due to him according to his nature and his essence: his dignity and his ‘inalienable rights’ from conception to natural death.

It is on this anthropology that are based the rights and values ​​that must be recognized and not founded, promoted and not determined, perhaps expanded and never disregarded.

Ulpian, Roman jurist of the second century, among the greatest exponents of Roman law, can show us the way and the rules to be followed still today in law and biolaw: justice is all that is good and fair, because ‘juris praecepta sunt haec: suum cuique tribuere, alterum not laedere, honeste vivere‘ (the rules of law are these: to give to everyone his own, to do no harm to others, to live honestly).