RICERCA ITALIANA     

Identity, individuals, human being and health

Scuola Superiore di Studi Universitari e Perfezionamento S. Anna di Pisa

Abstract

The goal of this research project is to point out the most relevant legal issues in which personal identity embodies the mean of fulfilment of right to health. The general framework is the one in which health care is not anymore just a demand of public services over the state, but primarily a fundamental right of citizens with vertical and, above all, horizontal effect.
First basilar direction of the inquiry is to ascertain limits and extent of the notion of "persona" and its legal relevance. Civil law, comparative law and legal philosophy provide for definitions and arguments in order to set the research within the legal system. Health care, on the other side, constitutes a privileged category to deepen the study of the notion of "persona" which enables researchers to reach both analytical and systemic results. <<<

Principal Investigator

Francesco Donato BUSNELLI Scuola Sup. di Studi Univ. e Perfezionamento S.Anna di PISA

Research Objectives

The aim of the research program is to point out the complexity of legal factors which concern subjectivity, personal identity and health in their various aspects.
In this perspective the following issues shall come at stake:
i) genetic data and fundamental rights;
ii) human dignity and remedies for personal injuries;
iii) protection of personal identity and freedom of contract;
iv) freedom of choice and health care between private parties.
These issues constitute a seminal research core to complete an in-depth analysis which takes care of personal identity fulfilment in the framework of health care arguments, both public and private.
Legal tradition shows how concepts as "persona" and "Soggettività giuridica" cover a central role in the nineteenth century codification. At the beginning the power of the State whether or not to recognize legal capacity on individuals has been quite an unquestionable matter. Later on, once overcome racial discrimination and persistent debate on full legal capacity and "gradable" legal capacity, scholars have concentrated upon the rights of the unborn child, particularly on the side of recognizing to it the status of human being.
Far beyond this aspect scientific contribution has focused on the process of formation of the biological and sociological identity of the human being, by pointing out its limits and extent in light of biological, psychological, genetic and sociological sciences.
From a legal point of view the areas of the law most relevant to this issues are those ones in which personal identity covers a major role within the system of health care, both public and private.
Right to health is directly linked to personal identity in consideration of the fact that the latter is based and depends on the integrity of the former, in its two components of biological and genetic inheritance. This is particularly true on the side of a dynamic conception of right to health, intended as a privileged platform of inquiry for the complex process of formation and manifestation of personal identity.
By these preliminary remarks the research aims at deepening the study in some area of the law as different declinations of the theme "Identity, subject, person, health".
First of all the raise of private insurance policies as a mean to prevent personal disease and illness marks the relevance of setting limits to the recourse of genetic testes which aim at discovering the actual or potential health conditions. Under this head of the study it would be highly questionable to request the insured to undergo genetic testes, which could end up in an unequal modification of the insurance contract and its terms. Such a conclusion may be argued in consideration of the inviolability of the right to the human genome, which grounds on the fundamental values of our legal system: life, health, physical integrity and dignity. Far beyond these same issues are considered in many international documents which take care of human genome's and genetic data protection. Indeed, it is of paramount importance to ascertain the relation between personal identity, genetic data and genetic testes, health and health care insurance.
From a second point of view it is necessary to consider the role of human dignity as an hard-core value, in all its possible configurations (North America, subjective model; Europe, objective model).
Human dignity indeed incorporates both right to personal identity and right to health in their broadest extension. Under the first head of the structure, in fact, human dignity embodies the core of personal values and of data protection statutes, furnishing to lawyers a solid basis to resolve conflicts of interests involved and eventual gasps in legislation. On the right to health side, instead, human dignity has played a terrific role in defining personal injuries remedies which work independently from rules governing patrimonial damages and loss of income. The recent judicial revirement in the field of non pecuniary loss clearly witnesses this influence.
Finally the personal identity issue should be considered as a mean of fulfillment of right to health, in light of the contemporary conception of health services where patients not only receive medical treatments but also participate to it whit consent to treatment.
Consent to treatment indeed sets the limits of a kind of health care to be conceived as an individual value and not only as an objective one. Far beyond the consent issue marks important and problematic aspects related to the formation of personal identity, especially where weak parties' interests (as elder people and children) come at stake. <<<

Timescale

24 months

National and international background

The protection of personal identity has been widely discussed and analysed by the legal community in recent years in all its aspects (biological identity, personality rights, genetic information and data processing).
Definitions outlined in the abstract have their own autonomy, but they have been studied also in thelight of the interaction between them. Legal, sociological and philosophical studies on the formation of personal identity deserve at this mean a greater attention.
Through seminal and in-depth studies legal tradition shows how concepts as "persona" and "Soggettività giuridica" cover a central role in the nineteenth century codification. At the beginning the power of the State whether or not to recognize legal capacity on individuals has been quite an unquestionable matter. Later on, once overcome racial discrimination and persistent debate on full legal capacity and "gradable" legal capacity, scholars have concentrated upon the rights of the unborn child, particularly on the side of recognizing it the status of human being.
Far beyond this aspect, scientific contribution has focused on the process of formation of the biological and sociological identity of the human being, by pointing out its limits and extent in the light of biological, psychological, genetic and sociological sciences.
From a legal point of view the areas of the law most relevant to this issues are those ones in which personal identity covers a major role within the system of health care, both public and private.
Right to health is directly linked to personal identity in consideration of the fact that the latter is based and depends on the integrity of the former, in its two components of biological and genetic inheritance. This is particularly true on the side of a dynamic conception of right to health, intended as a privileged platform of inquiry for the complex process of formation and manifestation of personal identity.
The fulfilment of the studies objectives of this project requires an in-depth analysis of some peculiar areas of the law.
First of all the raise of private insurance policies as a mean to prevent personal disease and illness marks the relevance of setting limits to the recourse of genetic testes which aim at discovering the actual or potential health conditions. Under this head of the study it would be highly questionable to request the insured to undergo genetic testes, which could end up in an unequal modification of the insurance contract and its terms. Such a conclusion may be argued in consideration of the inviolability of the right to the human genome, which grounds on the fundamental values of our legal system: life, health, physical integrity and dignity. Far beyond these same issues are considered in many international documents which take care of human genome's and genetic data protection. Indeed, it is of paramount importance to ascertain the relation between personal identity, genetic data and genetic testes, health and health care insurance.
This last aspect reveals all its potential legal implications in the field of the protection of privacy: indeed principles and rules governing the processing of genetic data play a fundamental role due to the high personality of the information they contain. Unlawful circulation of genetic data could end up in discriminations limiting freedom of choice (especially on the health care side). More incisively, unlawful processing could invest protected interested of a group of people beyond the person the personal information belong to. This is due to the fact that genetic data normally infer to a same parental group of persons whose interests should then be considered while giving access to the genetic inheritance of an individual.
Such remark underlies the necessity of rules in order to balance rights and interests involved, as information it is possible to acquire by one single person's genetic inheritance could circulate among an indefinable audience of third parties, including public policy issues.
From a second point of view it is necessary to consider the role of human dignity as an hard-core value, in all its possible configurations (North America, subjective model; Europe, obejective model).
Human dignity indeed incorporates both right to personal identity and right to health in their broadest extension. Under the first head of the structure, in fact, human dignity embodies the core of personal values and of data protection statutes, furnishing to lawyers a solid basis to resolve conflicts of interests involved and eventual gasps in legislation. On the right to health side, instead, human dignity has played a terrific role in defining personal injuries remedies which work independently from rules governing patrimonial damages and loss of income. The recent judicial revirement in the field of non pecuniary loss clearly witnesses this influence.
Thirdly, the personal identity issue should be considered as a mean of fulfillment of right to health, in the light of the contemporary conception of health services where patients not only receive medical treatments but also participate to it with consent to treatment.
Consent to treatment indeed sets the limits of a kind of health care to be conceived as an individual value and not only as an objective one. Far beyond the consent issue marks important and problematic aspects related to the formation of personal identity, especially where weak parties' interests (as elder people and children) come at stake.
All the legal issues that have been pointed out constitute the basis on which to ground an in-depth analysis of personal identity's protection, as a mean of fulfilment of health care both of citizens and society as a whole. <<<