-
1
-
-
63649125738
-
-
See notably C. Labrusse-Riou, 'L'enjeu des qualifications: La survie juridique de la personne' (1991) 13 Droits 19
-
See notably C. Labrusse-Riou, 'L'enjeu des qualifications: La survie juridique de la personne' (1991) 13 Droits 19
-
-
-
-
2
-
-
63649125323
-
-
J.-C. Honlet, 'Adaptation et Résistance de Catégories Substantielles de Droit Privé aux Sciences de la Vie' in C. Labrusse-Riou (ed.), Le Droit Saisi Par la Biologie (Librairie Générale de Droit et de Jurisprudence 1996) at 233 as well as emblematically, the titles of the following studies published in French law journals: J.-F. Niort, 'L'eLbryon et le droit: l'impossible statut?' (1998) 2 Revue de la Recherche Juridique 459
-
J.-C. Honlet, 'Adaptation et Résistance de Catégories Substantielles de Droit Privé aux Sciences de la Vie' in C. Labrusse-Riou (ed.), Le Droit Saisi Par la Biologie (Librairie Générale de Droit et de Jurisprudence 1996) at 233 as well as emblematically, the titles of the following studies published in French law journals: J.-F. Niort, 'L'eLbryon et le droit: l'impossible statut?' (1998) 2 Revue de la Recherche Juridique 459
-
-
-
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4
-
-
63649144897
-
Le corps hors du commerce, hors du marché
-
Thus causing some scholars and judges to suggest that a 'third category' be created, in order for legal categories to accommodate entities such as embryos. See
-
Thus causing some scholars and judges to suggest that a 'third category' be created, in order for legal categories to accommodate entities such as embryos. See notably M.-A. Hermitte, 'Le corps hors du commerce, hors du marché' (1988) 33 Archives de Philosophie du Droit 323
-
(1988)
Archives de Philosophie du Droit
, vol.33
, pp. 323
-
-
notably, M.-A.1
Hermitte2
-
5
-
-
79960267525
-
Entre les personnes et les choses, les centres d'intérêt
-
G. Farjat, 'Entre les personnes et les choses, les centres d'intérêt' (2002) Revue Trimestrielle de Droit Civil 221.
-
(2002)
Revue Trimestrielle de Droit Civil
, vol.221
-
-
Farjat, G.1
-
6
-
-
63649119327
-
-
For a recent re-opening of that debate, see pro-choice groups' reactions to a recent ruling by the Cour de Cassation according to which a born dead foetus may be registered. For the ruling, see
-
For a recent re-opening of that debate, see pro-choice groups' reactions to a recent ruling by the Cour de Cassation according to which a born dead foetus may be registered. For the ruling, see http://www.courdecassation.fr/jurisprudence_publications_documentation_2/ actualite_jurisprudence_21/premiere_chambre_civile_568/arrets_569/ aux_arrets_11171.html.
-
-
-
-
7
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-
63649106914
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La Cour de cassation relance le débat sur le statut du foetus
-
For a comment, see, 8 February
-
For a comment, see M.-J. Gros, 'La Cour de cassation relance le débat sur le statut du foetus' (8 February 2008) Libération.
-
(2008)
Libération
-
-
Gros, M.-J.1
-
8
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-
63649085592
-
-
Law n. 94-653 of 29 July 1994 relative au respect du corps humain
-
Law n. 94-653 of 29 July 1994 relative au respect du corps humain
-
-
-
-
9
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-
63649131802
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-
Law n. 94-654 of 29 July 1994 relative à l'assistance médicale à la procréation, au diagnostic prénatal et au don et à l'utilisation des éléments et produits du corps humain
-
Law n. 94-654 of 29 July 1994 relative à l'assistance médicale à la procréation, au diagnostic prénatal et au don et à l'utilisation des éléments et produits du corps humain
-
-
-
-
11
-
-
63649158169
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-
Among which: Law n. 75-17 of 17 January 1975 and 2001-588 of 4 July 2001 on Abortion
-
Among which: Law n. 75-17 of 17 January 1975 and 2001-588 of 4 July 2001 on Abortion
-
-
-
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12
-
-
63649158598
-
-
Law n. 88-1138 of 22 December 1988 and 2004-806 of 9 August 2004 on Human Experimentation
-
Law n. 88-1138 of 22 December 1988 and 2004-806 of 9 August 2004 on Human Experimentation
-
-
-
-
13
-
-
63649118944
-
-
Law 2002-303 of 4 March 2002 on Patients' Rights
-
Law 2002-303 of 4 March 2002 on Patients' Rights
-
-
-
-
15
-
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63649140490
-
-
Cass. Crim., Ass. Plen. 29 June 2001 (available at: http://www.legifrance.com/affichJuriJudi.do?oldAction= rechJuriJudi&idTexte=JURITEXT000007071215&fastReqId= 1180821895&fastPos=1, visited 11 February 2008).
-
Cass. Crim., Ass. Plen. 29 June 2001 (available at: http://www.legifrance.com/affichJuriJudi.do?oldAction= rechJuriJudi&idTexte=JURITEXT000007071215&fastReqId= 1180821895&fastPos=1, visited 11 February 2008).
-
-
-
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16
-
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63649104785
-
-
This judicial interpretation has been challenged before the European Court of Human Rights, which has eventually decided that redress from offences leading to the death of unborn children need not be of criminal nature and thus concluded French law did not violate the ECHR; see ECtHR, 8 July 2004, Vo v. France, 53924/00
-
This judicial interpretation has been challenged before the European Court of Human Rights, which has eventually decided that redress from offences leading to the death of unborn children need not be of criminal nature and thus concluded French law did not violate the ECHR; see ECtHR, 8 July 2004, Vo v. France, 53924/00).
-
-
-
-
17
-
-
63649139158
-
-
Law n. 75-17 of 17 January 1975, art. 1: 'The law guarantees the respect of all human beings from the outset of life' ['La loi garantit le respect de tout être humain dès le commencement de la vie'].
-
Law n. 75-17 of 17 January 1975, art. 1: 'The law guarantees the respect of all human beings from the outset of life' ['La loi garantit le respect de tout être humain dès le commencement de la vie'].
-
-
-
-
18
-
-
63649118509
-
-
See Const. Council, 27 July 1994, 94-343-344 DC (available at http://www.conseil-constitutionnel.fr/decision/1994/94343dc.htm visited 23 November 2007).
-
See Const. Council, 27 July 1994, 94-343-344 DC (available at http://www.conseil-constitutionnel.fr/decision/1994/94343dc.htm visited 23 November 2007).
-
-
-
-
19
-
-
63649130915
-
-
See on the concept of 'respect' due to the human embryo generally M.J. Meyer and L.J. Nelson, 'Respecting What We Destroy. Reflections on Human Embryo Research' (2001) 3 The Hastings Centre Report 1, 16-23.
-
See on the concept of 'respect' due to the human embryo generally M.J. Meyer and L.J. Nelson, 'Respecting What We Destroy. Reflections on Human Embryo Research' (2001) 3 The Hastings Centre Report 1, 16-23.
-
-
-
-
20
-
-
0032491416
-
Embryonic Stem Cell Lines Derived from Human Blastocysts
-
See notably
-
See notably J.A. Thomson et al., 'Embryonic Stem Cell Lines Derived from Human Blastocysts' (1998) 282 Science, 1145-1147.
-
(1998)
Science
, vol.282
, pp. 1145-1147
-
-
Thomson, J.A.1
-
21
-
-
0032491422
-
New Potential for Human Embryonic
-
Science 1061-1062, mentioning genetic transplant therapies as a therapeutic horizon. See
-
See J. Gearhart, 'New Potential for Human Embryonic Stem Cells' (1998) 282 Science 1061-1062, mentioning genetic transplant therapies as a therapeutic horizon.
-
(1998)
Stem Cells
, pp. 282
-
-
Gearhart, J.1
-
22
-
-
63649092167
-
-
See also Stem Cells and the Future of Regenerative Medicine: Committee on the Biological and Biomedical Applications of Stem Cell Research Board on Life Sciences National Research Council Board on Neuroscience and Behavioral Health Institute of Medicine (National Academy Press 2002).
-
See also Stem Cells and the Future of Regenerative Medicine: Committee on the Biological and Biomedical Applications of Stem Cell Research Board on Life Sciences National Research Council Board on Neuroscience and Behavioral Health Institute of Medicine (National Academy Press 2002).
-
-
-
-
23
-
-
85185404415
-
-
On a more dubious standpoint, see D.A. Prentice, Current Science of Regenerative Medicine with Stem Cells, 2006 54 Journal of Investigative Medicine 1: In this paper, the author underlies the many difficulties that ESC manipulation still faces and insists on how distant therapeutic applications remain
-
On a more dubious standpoint, see D.A. Prentice, 'Current Science of Regenerative Medicine with Stem Cells' (2006) 54 Journal of Investigative Medicine 1: In this paper, the author underlies the many difficulties that ESC manipulation still faces and insists on how distant therapeutic applications remain.
-
-
-
-
24
-
-
63649140925
-
-
Also, he insists on the higher than expected potential of adult stem cells. In a less strictly scientific and more regulatory (ethical and legal) approach, see R. Brownsword, 'Stem Cells and Cloning: Where the Regulatory Consensus Fails' (2005) 39 New England Law Review 536, 553: 'Are we looking hard enough for the negatives?'.
-
Also, he insists on the higher than expected potential of adult stem cells. In a less strictly scientific and more regulatory (ethical and legal) approach, see R. Brownsword, 'Stem Cells and Cloning: Where the Regulatory Consensus Fails' (2005) 39 New England Law Review 536, 553: 'Are we looking hard enough for the negatives?'.
-
-
-
-
25
-
-
0027700774
-
-
However, it has convincingly been argued that whether one focuses on the positives or the negatives of scientific [in this case, ESC] research depends on pre-existing moral conceptions; see notably, M. Mulkay, Rhetorics of Hope and Fear in the Great Embryo Debate, 1993 23 Social Studies of Science 4, 721, 724: 'The rhetoric of hope is an institutionalized interpretative form which is widely used in our culture to express support for current developments in science and technology. Use of the rhetoric of fear, in contrast, seems to become appropriate only when science and technology can be represented as violating basic cultural categories and moral values. I will show how participants' adoption of one rhetoric rather than the other in parliamentary context was linked to their varying conceptions of the human community and thereby to differing judgments concerning the moral character of embryo research
-
However, it has convincingly been argued that whether one focuses on the positives or the negatives of scientific [in this case, ESC] research depends on pre-existing moral conceptions; see notably, M. Mulkay, 'Rhetorics of Hope and Fear in the Great Embryo Debate' (1993) 23 Social Studies of Science 4, 721, 724: 'The rhetoric of hope is an institutionalized interpretative form which is widely used in our culture to express support for current developments in science and technology. Use of the rhetoric of fear, in contrast, seems to become appropriate only when science and technology can be represented as violating basic cultural categories and moral values. I will show how participants' adoption of one rhetoric rather than the other in parliamentary context was linked to their varying conceptions of the human community and thereby to differing judgments concerning the moral character of embryo research'.
-
-
-
-
26
-
-
63649128486
-
-
It can be argued that this is what has happened in most countries in which legal responses to the ESC issue have been crafted. To be sure, the German law of 2002 maintains a ban on embryonic research and thus strongly contrasts with the 2001 regulations in the UK that permit therapeutic cloning. However, these two countries that are often presented as the emblems of opposite responses to the ESC issue already had very opposing legal constructions of the human embryo before the ESC issue arose. Therefore, it might be worth noticing that the ESC issue made them move in the same direction (i.e. towards a more liberal legal regulatory framework, for Germany has authorized research on imported ESC, thus parting from a solely ontological approach) instead of insisting on the fact that they still treat those issues differently. For a comparative account of ESC research regulations focusing on the differences in approaches however, see S. Halliday, A Comparative Approach to th
-
It can be argued that this is what has happened in most countries in which legal responses to the ESC issue have been crafted. To be sure, the German law of 2002 maintains a ban on embryonic research and thus strongly contrasts with the 2001 regulations in the UK that permit therapeutic cloning. However, these two countries that are often presented as the emblems of opposite responses to the ESC issue already had very opposing legal constructions of the human embryo before the ESC issue arose. Therefore, it might be worth noticing that the ESC issue made them move in the same direction (i.e. towards a more liberal legal regulatory framework, for Germany has authorized research on imported ESC, thus parting from a solely ontological approach) instead of insisting on the fact that they still treat those issues differently. For a comparative account of ESC research regulations (focusing on the differences in approaches however), see S. Halliday, 'A Comparative Approach to the Regulation of Human Embryonic Stem Cell Research in Europe' (2004) 12 Med. L. Rev. 40.
-
-
-
-
27
-
-
63649127629
-
-
The 2004 Law on Bioethics contains a provision (as did the 1994 one) according to which it is to be revised within five years.
-
The 2004 Law on Bioethics contains a provision (as did the 1994 one) according to which it is to be revised within five years.
-
-
-
-
28
-
-
63649092166
-
-
The issues of ESC research and therapeutic cloning are tightly linked, for any prospect of therapeutic use of ESC-based technology would, were random ESC to be used for a particular patient, face the problem common with all transplants: That of rejection from the receiver's immune system. For that reason, it soon was argued that ESC obtained via therapeutic cloning originating from an enucleated cell of the person to cure would enable autologous transplants of ESC therapies and thus circumvent the problem. For that reason, the prospect of therapeutic use of ESC-based technology is linked to the issue of therapeutic cloning.
-
The issues of ESC research and therapeutic cloning are tightly linked, for any prospect of therapeutic use of ESC-based technology would, were random ESC to be used for a particular patient, face the problem common with all transplants: That of rejection from the receiver's immune system. For that reason, it soon was argued that ESC obtained via therapeutic cloning originating from an enucleated cell of the person to cure would enable autologous transplants of ESC therapies and thus circumvent the problem. For that reason, the prospect of therapeutic use of ESC-based technology is linked to the issue of therapeutic cloning.
-
-
-
-
29
-
-
63649162463
-
-
Prominent French biologists have publicly made clear that they would not oppose such a legislative option at the Journées parlementaires de bioéthique held in Paris in February 2007. It is worth keeping in mind that the Oviedo Bioethics Convention of 1997 prohibits (art. 18) the creation of human embryos for research S. Halliday, above n. 9, 44, this potentially accounts for the delay in ratifying the Convention encountered in different signatory countries such as France
-
Prominent French biologists have publicly made clear that they would not oppose such a legislative option at the Journées parlementaires de bioéthique held in Paris in February 2007. It is worth keeping in mind that the Oviedo Bioethics Convention of 1997 prohibits (art. 18) the creation of human embryos for research (S. Halliday, above n. 9, 44); this potentially accounts for the delay in ratifying the Convention encountered in different signatory countries such as France.
-
-
-
-
30
-
-
63649156043
-
-
In that respect, the trick consisting of presenting ESC as radically different from the embryo echoes the one that consisted, in the 1980s, of distinguishing between the pre-embryo and the embryo. On the progressive consecration of the pre-embryo concept (in the United Kingdom after the 1984 Warnock report but also elsewhere as in Spain, or in the 1988 Report of the Science and Technology Commission of the Council of Europe's Parliamentary Assembly presented by M. Palacios, doc. 5943, Rapport sur la Recherche Scientifique Relative à l'Embryon et au Foetus Humain), and its critical role in establishing the admissibility of embryonic research, see P. Oliviero, 'La notion de 'pre'-embryon' dans la literature politico-scientifique' (1991) 36 Archives de Philosophie du Droit 85-107
-
In that respect, the trick consisting of presenting ESC as radically different from the embryo echoes the one that consisted, in the 1980s, of distinguishing between the pre-embryo and the embryo. On the progressive consecration of the pre-embryo concept (in the United Kingdom after the 1984 Warnock report but also elsewhere as in Spain, or in the 1988 Report of the Science and Technology Commission of the Council of Europe's Parliamentary Assembly presented by M. Palacios, doc. 5943, Rapport sur la Recherche Scientifique Relative à l'Embryon et au Foetus Humain), and its critical role in establishing the admissibility of embryonic research, see P. Oliviero, 'La notion de 'pre'-embryon' dans la literature politico-scientifique' (1991) 36 Archives de Philosophie du Droit 85-107
-
-
-
-
31
-
-
0028534799
-
The Triumph of the Pre-Embryo: Interpretations of the Human Embryo in Parliamentary Debates over Embryo Research
-
M. Mulkay 'The Triumph of the Pre-Embryo: Interpretations of the Human Embryo in Parliamentary Debates over Embryo Research' (1994) 24 Social Studies of Science 611-39.
-
(1994)
Social Studies of Science
, vol.24
, pp. 611-639
-
-
Mulkay, M.1
-
32
-
-
0008884367
-
-
For a general presentation, see C. Neirinck ed, Librairie Générale de Droit et de Jurisprudence
-
For a general presentation, see C. Neirinck (ed.), De la Bioéthique au Biodroit (Librairie Générale de Droit et de Jurisprudence 1994).
-
(1994)
De la Bioéthique au Biodroit
-
-
-
33
-
-
63649159870
-
-
See art. 16 of the Civil Code: 'Legislation ensures the primacy of the person, prohibits any infringement of the latter's dignity and safeguards the respect of the human being from the outset of life' (translation available on the www.legifrance.com website).
-
See art. 16 of the Civil Code: 'Legislation ensures the primacy of the person, prohibits any infringement of the latter's dignity and safeguards the respect of the human being from the outset of life' (translation available on the www.legifrance.com website).
-
-
-
-
35
-
-
63649138723
-
-
Therefore, the 1994 law defined eligibility to assisted reproduction procedures as being conditioned by heterosexuality, proof of a minimal length and seriousness of the relationship and medically asserted sterility
-
Therefore, the 1994 law defined eligibility to assisted reproduction procedures as being conditioned by heterosexuality, proof of a minimal length and seriousness of the relationship and medically asserted sterility.
-
-
-
-
36
-
-
63649092651
-
-
The 1994 does indeed provide with a legal framework for pre-natal and pre-implantation diagnoses
-
The 1994 does indeed provide with a legal framework for pre-natal and pre-implantation diagnoses.
-
-
-
-
37
-
-
63649163287
-
-
To be sure, the restriction of assisted reproduction to heterosexual couples is nowadays under question, in France as elsewhere. This was certainly the case in 1999 when the Parliament was adopting the law creating the PACS (pacte civil de solidarité, a sort of civil union available to homosexuals (see P. Lascoumes and D. Borillo, Amours Egales? Le PACS, les Homosexuels et la Gauche La Découverte 2002
-
To be sure, the restriction of assisted reproduction to heterosexual couples is nowadays under question - in France as elsewhere. This was certainly the case in 1999 when the Parliament was adopting the law creating the PACS (pacte civil de solidarité), a sort of civil union available to homosexuals (see P. Lascoumes and D. Borillo, Amours Egales? Le PACS, les Homosexuels et la Gauche (La Découverte 2002).
-
-
-
-
38
-
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63649111608
-
-
Nonetheless, my aim here is to focus on what the 1994 laws said about the embryo, and in that respect, one can say they were not challenged before the early 2000s
-
Nonetheless, my aim here is to focus on what the 1994 laws said about the embryo, and in that respect, one can say they were not challenged before the early 2000s.
-
-
-
-
39
-
-
24944572129
-
-
In his comparative study, T. Banchoff argues that 'over the 1998-2004 period, scientific associations with proven success in lobbying governments for increased funding took up the stem cell research issue. They forged ties with two key allies: Biotechnology and biomedical companies seeking eventual profit from genetic and regenerative medicine and medical and patient advocacy groups seeking eventual cures for victims of Parkinson's, Alzheimer's and other degenerative diseases': T. Banchoff, 'Path Dependence and Value-Driven Issues. The Comparative Politics of Stem Cell Research' (2004) 57 World Politics 2, 200-230.
-
In his comparative study, T. Banchoff argues that 'over the 1998-2004 period, scientific associations with proven success in lobbying governments for increased funding took up the stem cell research issue. They forged ties with two key allies: Biotechnology and biomedical companies seeking eventual profit from genetic and regenerative medicine and medical and patient advocacy groups seeking eventual cures for victims of Parkinson's, Alzheimer's and other degenerative diseases': T. Banchoff, 'Path Dependence and Value-Driven Issues. The Comparative Politics of Stem Cell Research' (2004) 57 World Politics 2, 200-230.
-
-
-
-
41
-
-
63649134203
-
-
See art. L. 2141-5 and 2141-6 of the Code of Public Health [Code de la Santé Publique].
-
See art. L. 2141-5 and 2141-6 of the Code of Public Health [Code de la Santé Publique].
-
-
-
-
42
-
-
63649138274
-
-
Art. L. 2141-8 of the Code of Public Health [Code de la Santé Publique, in its 1994 version]: 'Exceptionally, the man and woman forming the couple may accept that studies be conducted on their embryos'; 'those studies must have a medical finality and may not infringe upon the embryo's integrity'. This possibility has been maintained under the 2004 legislation; see now art. L. 2151-5 of the Code of Public Health [Code de la Santé Publique, current version]: 'Exceptionally, when the man and woman who form the couple give their consent, studies that do not harm the embryo may be authorized'.
-
Art. L. 2141-8 of the Code of Public Health [Code de la Santé Publique, in its 1994 version]: 'Exceptionally, the man and woman forming the couple may accept that studies be conducted on their embryos'; 'those studies must have a medical finality and may not infringe upon the embryo's integrity'. This possibility has been maintained under the 2004 legislation; see now art. L. 2151-5 of the Code of Public Health [Code de la Santé Publique, current version]: 'Exceptionally, when the man and woman who form the couple give their consent, studies that do not harm the embryo may be authorized'.
-
-
-
-
43
-
-
63649160553
-
-
Paris Administrative Tribunal (TA Paris), 21 January 2003; see commentary S. Hennette-Vauchez (2003) 29 Actualité Juridique Droit Administratif 1563.
-
Paris Administrative Tribunal (TA Paris), 21 January 2003; see commentary S. Hennette-Vauchez (2003) 29 Actualité Juridique Droit Administratif 1563.
-
-
-
-
44
-
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63649118943
-
-
Paris Administrative Court of Appeal (CAA Paris), decision n.03PA00950 (available at http://www.legifrance.gouv.fr/WAspad/ Visu?cid=234091&indice=1&table=JADE&ligneDeb=1, as of 23 November 2007).
-
Paris Administrative Court of Appeal (CAA Paris), decision n.03PA00950 (available at http://www.legifrance.gouv.fr/WAspad/ Visu?cid=234091&indice=1&table=JADE&ligneDeb=1, as of 23 November 2007).
-
-
-
-
45
-
-
63649102153
-
-
Indeed such stances strongly contrast with the audacious or creative role that judges are most often seen to be playing in contemporary legal orders
-
Indeed such stances strongly contrast with the audacious or creative role that judges are most often seen to be playing in contemporary legal orders.
-
-
-
-
46
-
-
63649121574
-
-
It has been argued (and this was actually the French Minister of Research's argument before the courts) that since the 2004 Law on Bioethics that was at the time being discussed in Parliament was very likely going to authorize embryonic research anyway, it was worth upholding the particular challenged decision for it only anticipated on the results of the legislative work and did so with the intent of speeding French scientists' ability to take part in the worldwide research agenda on ESC
-
It has been argued (and this was actually the French Minister of Research's argument before the courts) that since the 2004 Law on Bioethics that was at the time being discussed in Parliament was very likely going to authorize embryonic research anyway, it was worth upholding the particular challenged decision for it only anticipated on the results of the legislative work and did so with the intent of speeding French scientists' ability to take part in the worldwide research agenda on ESC.
-
-
-
-
48
-
-
63649104320
-
-
See infra, 9
-
See infra, 9.
-
-
-
-
49
-
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63649164147
-
-
Site: http://www.agence-biomedecine.fr. S. Halliday has noticed that the licensing of embryonic research by a central regulatory body is a point of consensus between many countries that have established otherwise differing legal frameworks for ESC research, S. Halliday, above n. 12, 68.
-
Site: http://www.agence-biomedecine.fr. S. Halliday has noticed that the licensing of embryonic research by a central regulatory body is a point of consensus between many countries that have established otherwise differing legal frameworks for ESC research, S. Halliday, above n. 12, 68.
-
-
-
-
50
-
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63649099334
-
-
If the decision is a negative one, the Ministers of Health and of Research may act as appellate authorities and ask the Agency to re-examine the case; also if the decision is positive, they may overrule it with consideration of ethical and/or scientific principles
-
If the decision is a negative one, the Ministers of Health and of Research may act as appellate authorities and ask the Agency to re-examine the case; also if the decision is positive, they may overrule it with consideration of ethical and/or scientific principles.
-
-
-
-
51
-
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63649110404
-
-
See information on these authorizations at: http://www.agence-biomedecine.fr/fr/experts/ pegh-recherche-projets.aspx#liste (last visited 23 November 2007).
-
See information on these authorizations at: http://www.agence-biomedecine.fr/fr/experts/ pegh-recherche-projets.aspx#liste (last visited 23 November 2007).
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-
-
-
52
-
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63649116644
-
-
Decree 98-216 of 24 march 1998 available at: http://www.legifrance.gouv.fr/jopdf/common/
-
Decree 98-216 of 24 march 1998 available at: http://www.legifrance.gouv.fr/jopdf/common/
-
-
-
-
53
-
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63649161391
-
-
To be more precise, the ad hoc committee gave opinions on a number of applicants' protocols and it was the Ministers of Health and Research who actually delivered the authorizations - but always according to the committee's recommendations.
-
To be more precise, the ad hoc committee gave opinions on a number of applicants' protocols and it was the Ministers of Health and Research who actually delivered the authorizations - but always according to the committee's recommendations.
-
-
-
-
54
-
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63649153599
-
-
Information gathered from A. Claeys, Les Recherches sur le Fonctionnement des Cellules Humaines, Official Report of the Parliamentary Observatory for Scientific and Technological Options, December 2006 (available at: http://www.assemblee-nationale.fr/12/ rap-off/i3498.asp (last visited 26 November 2007).
-
Information gathered from A. Claeys, Les Recherches sur le Fonctionnement des Cellules Humaines, Official Report of the Parliamentary Observatory for Scientific and Technological Options, December 2006 (available at: http://www.assemblee-nationale.fr/12/ rap-off/i3498.asp (last visited 26 November 2007).
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-
-
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55
-
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0033237349
-
-
This does not account for the reasons thanks to which the ESC issue itself has acquired such a salience in the public debate. Certainly, further investigation should here be directed towards the specific parliamentary management of the issue (for a tentative account of the relevant factors in that perspective, see M. Kirejczyk, Parliamentary Cultures and Human Embryos, 1999) 29 Social Studies of Science 6 889-912
-
This does not account for the reasons thanks to which the ESC issue itself has acquired such a salience in the public debate. Certainly, further investigation should here be directed towards the specific parliamentary management of the issue (for a tentative account of the relevant factors in that perspective, see M. Kirejczyk, 'Parliamentary Cultures and Human Embryos' (1999) 29 Social Studies of Science 6 889-912),
-
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56
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63649149930
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but also to the other external or structural factors that explain that the state of affairs was propitious for the ESC issue to become a major one focusing on actor constellations, balance of interests and the terms of legislative debates, see T. Banchoff, above n. 23
-
but also to the other external or structural factors that explain that the state of affairs was propitious for the ESC issue to become a major one (focusing on actor constellations, balance of interests and the terms of legislative debates, see T. Banchoff, above n. 23).
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57
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33645349960
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For a careful comparison of the influence of one of the great markers of the terms of the legislative debates (e.g. abortion) on the way the ESC issue has been addressed in three countries, see K.L. Belew, Stem Cell Division: Abortion Law and its Influence on the Adoption of Radically Different Embryonic Stem Cell Legislation in the United States, the United Kingdom and Germany, 2004) 39 Texas International Law Journal 3, 479
-
For a careful comparison of the influence of one of the great markers of the terms of the legislative debates (e.g. abortion) on the way the ESC issue has been addressed in three countries, see K.L. Belew, 'Stem Cell Division: Abortion Law and its Influence on the Adoption of Radically Different Embryonic Stem Cell Legislation in the United States, the United Kingdom and Germany' (2004) 39 Texas International Law Journal 3, 479.
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-
-
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58
-
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63649085166
-
-
For example, see how important the 'brain drain' rationale has been in the legislative debates in Germany (S. Halliday, above n. 12).
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For example, see how important the 'brain drain' rationale has been in the legislative debates in Germany (S. Halliday, above n. 12).
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59
-
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0035470718
-
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Interestingly, much less attention has been paid to the fact that the therapeutic prospects of ESC-based technology were remote than to the fact they were invoked; in particular, see the centrality of the vocabulary of 'magic' in the debate, underlined by R.D. Orr and C.C. Hook, 'Stem Cell Research: Magical Promise v. Moral Peril' (2001-02) 2 Yale J. Health Pol'y L & Ethics, 189.
-
Interestingly, much less attention has been paid to the fact that the therapeutic prospects of ESC-based technology were remote than to the fact they were invoked; in particular, see the centrality of the vocabulary of 'magic' in the debate, underlined by R.D. Orr and C.C. Hook, 'Stem Cell Research: Magical Promise v. Moral Peril' (2001-02) 2 Yale J. Health Pol'y L & Ethics, 189.
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60
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63649145338
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-
For example, see how discreet the Alzheimer's disease debate has remained recently in France albeit being declared 'national cause' [cause nationale] for 2007.
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For example, see how discreet the Alzheimer's disease debate has remained recently in France albeit being declared 'national cause' [cause nationale] for 2007.
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61
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63649122999
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See above, n. 24
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See above, n. 24.
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62
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63649091306
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This is not to be understood mathematically, for the strongest opponents to embryonic research were inferior in numbers to the margin in votes that enabled the adoption of the 1994 law. Nonetheless, the strength of the idea that embryos were reserved to procreative means was such that it was a condition of general acceptance of the law by many members of the French Parliament. Here again, it is worth noticing that despite a common presentation in comparative literature in the UK being very liberal on these subjects, Germany very conservative and France standing somewhere in the middle, this particular structure of lawmaking being keen on regulating assisted reproduction and achieving that goal rather easily, but simultaneously facing considerably stronger tensions when addressing the issue of embryonic research, is quite common. Even in the UK has that question revealed a very acute divide, and in 1990 when the HFEA was passed, a ban on the controversial provision allowing the creation
-
This is not to be understood mathematically, for the strongest opponents to embryonic research were inferior in numbers to the margin in votes that enabled the adoption of the 1994 law. Nonetheless, the strength of the idea that embryos were reserved to procreative means was such that it was a condition of general acceptance of the law by many members of the French Parliament. Here again, it is worth noticing that despite a common presentation in comparative literature in the UK being very liberal on these subjects, Germany very conservative and France standing somewhere in the middle, this particular structure of lawmaking being keen on regulating assisted reproduction and achieving that goal rather easily, but simultaneously facing considerably stronger tensions when addressing the issue of embryonic research, is quite common. Even in the UK has that question revealed a very acute divide, and in 1990 when the HFEA was passed, a ban on the controversial provision allowing the creation of embryos for research under exceptional circumstances only narrowly failed (246 to 208; see T. Banchoff, above n. 23, 214).
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-
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63
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63649084434
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Conseil d'Etat, Les Lois de Bioéthique, Cinq Ans Après (La Documentation Française 1999). See notably pages 15 and following, in which the Conseil d'Etat explains that in 1994, embryonic research only aimed at improving assisted reproduction techniques and could thus be banned given the fact that many such techniques were already available and satisfactory with regard to the existing needs, whereas in the late 1990s, it appears that embryonic research aims at therapeutic developments of many diseases among which some incurable ones - and thus ought to be authorized.
-
Conseil d'Etat, Les Lois de Bioéthique, Cinq Ans Après (La Documentation Française 1999). See notably pages 15 and following, in which the Conseil d'Etat explains that in 1994, embryonic research only aimed at improving assisted reproduction techniques and could thus be banned given the fact that many such techniques were already available and satisfactory with regard to the existing needs, whereas in the late 1990s, it appears that embryonic research aims at therapeutic developments of many diseases among which some incurable ones - and thus ought to be authorized.
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64
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63649119739
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Opinion of 23 June 1998: 'it is necessary to admit that as far as the embryo is concerned, research on the fertilization process, cryoconservation and implantation is a medical duty. It is a necessary condition for the therapeutic improvements... Research on the human embryo is capable of improving the prognosis of extra-corporeal fertilizations by enabling the identification of embryos that carry lethal abnormalities. Therefore the number of implanted embryos could be diminished, thus the number of multiple pregnancies of which the danger for the mother and the children is well known'.
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Opinion of 23 June 1998: 'it is necessary to admit that as far as the embryo is concerned, research on the fertilization process, cryoconservation and implantation is a medical duty. It is a necessary condition for the therapeutic improvements... Research on the human embryo is capable of improving the prognosis of extra-corporeal fertilizations by enabling the identification of embryos that carry lethal abnormalities. Therefore the number of implanted embryos could be diminished, thus the number of multiple pregnancies of which the danger for the mother and the children is well known'.
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65
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63649129599
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Opinion of 10 June 2002 that expresses the Academy's concern for the fact that French research is impeded by restrictive legal regulation that thus ought to be changed, and underlies the importance of research in human embryonic stem cells.
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Opinion of 10 June 2002 that expresses the Academy's concern for the fact that French research is impeded by restrictive legal regulation that thus ought to be changed, and underlies the importance of research in human embryonic stem cells.
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-
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66
-
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63649101504
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See opinion n. 53 of 11 march 1997, 4: 'given the important perspectives generated by ESC lines in terms of therapeutic research (...), new legislative provisions should be adopted when the law is revised in order to modify the prohibition contained in [art. L. 152-8 of the Code of Public Health]. With respect to such aims, it would be envisaged to authorize research on embryos donated by couples who have given up their parental projects and do not wish conservation to be continued'.
-
See opinion n. 53 of 11 march 1997, 4: 'given the important perspectives generated by ESC lines in terms of therapeutic research (...), new legislative provisions should be adopted when the law is revised in order to modify the prohibition contained in [art. L. 152-8 of the Code of Public Health]. With respect to such aims, it would be envisaged to authorize research on embryos donated by couples who have given up their parental projects and do not wish conservation to be continued'.
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67
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63649137857
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See Art. L. 2151-5 Code of Public Health: 'Research on human embryos is forbidden, As a dispensation, and for a limited period of time of five years after the corresponding decree will be published, research can be authorized on human embryos and ESC when it is susceptible of enabling major therapeutic progress and under the condition that it cannot be achieved by any other method of comparable efficiency, Research can be conducted only on embryos created in vitro within an assisted reproduction protocol and if they no longer correspond to a parental project. It can only be undertaken after the couple the embryos come from (or, were it to be the case, its surviving member) has expressed its written consent, given that the couple shall have been priorly informed of the possibilities it has of either donating the embryos to another sterile couple or ending their conservation. In all cases, both members of the couple may withdraw their consent at any time and for any motive. Research
-
See Art. L. 2151-5 Code of Public Health: 'Research on human embryos is forbidden... As a dispensation, and for a limited period of time of five years after the corresponding decree will be published, research can be authorized on human embryos and ESC when it is susceptible of enabling major therapeutic progress and under the condition that it cannot be achieved by any other method of comparable efficiency... Research can be conducted only on embryos created in vitro within an assisted reproduction protocol and if they no longer correspond to a parental project. It can only be undertaken after the couple the embryos come from (or, were it to be the case, its surviving member) has expressed its written consent, given that the couple shall have been priorly informed of the possibilities it has of either donating the embryos to another sterile couple or ending their conservation. In all cases, both members of the couple may withdraw their consent at any time and for any motive. Research cannot be undertaken unless the corresponding protocol has been authorized by the Biomedical Agency. The decision to authorize such research is based on the project's scientific relevance, its implementation conditions with respect to ethical principles and its interest in terms of public health' La recherche sur l'embryon humain est interdite (...) Par dérogation au premier alinéa, et pour une période limitée à cinq ans... les recherches peuvent être autorisées sur l'embryon et les cellules embryonnaires lorsqu'elles sont susceptibles de permettre des progrès thérapeutiques majeurs et à la condition de ne pouvoir être poursuivies par une méthode alternative d'efficacité comparable, en l'état des connaissances scientifiques... Une recherche ne peut être conduite que sur les embryons conc,us in vitro dans le cadre d'une assistance médicale à la procréation qui ne font plus l'objet d'un projet parental. Elle ne peut être effectuée qu'avec le consentement écrit préalable du couple dont ils sont issus, ou du membre survivant de ce couple, par ailleurs dûment informés des possibilités d'accueil des embryons par un autre couple ou d'arrêt de leur conservation... Dans tous les cas, le consentement des deux membres du couple est révocable à tout moment et sans motif. Une recherche ne peut être entreprise que si son protocole a fait l'objet d'une autorisation par l'Agence de la biomédecine. La décision d'autorisation est prise en fonction de la pertinence scientifique du projet de recherche, de ses conditions de mise en oeuvre au regard des principes éthiques et de son intérêt pour la santé publique...].
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-
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68
-
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63649137858
-
-
S. Halliday, for example, has noted that the German Stammzellgesetz of 2002 proceeded much the same way: It 'sets out the basic position that the import and use of embryonic stem cells is forbidden. However, the following paragraphs are devoted to setting out the exception to that rule' (S. Halliday, above n. 12, 60). Many other examples could be mentioned.
-
S. Halliday, for example, has noted that the German Stammzellgesetz of 2002 proceeded much the same way: It 'sets out the basic position that the import and use of embryonic stem cells is forbidden. However, the following paragraphs are devoted to setting out the exception to that rule' (S. Halliday, above n. 12, 60). Many other examples could be mentioned.
-
-
-
-
69
-
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63649163725
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See explicitly in this respect German National Ethics Council, Opinion: The Import of Human Embryonic Stem Cells (December 2001) 39: 'The symbolic function of the protection of human embryos: Apart from the moral status attaching to the embryos as such, their reliable protection has a symbolic function and significance in our culture. Preventing the instrumentalization of embryos for extraneous purposes is a token of a protection of all who are unable to protect themselves and to argue in favor of their own protection' (available at: http://www.ethikrat.org/_english/publications/stem_cells/Opinion_Import-HESC.pdf as of 10 December 2007).
-
See explicitly in this respect German National Ethics Council, Opinion: The Import of Human Embryonic Stem Cells (December 2001) 39: 'The symbolic function of the protection of human embryos: Apart from the moral status attaching to the embryos as such, their reliable protection has a symbolic function and significance in our culture. Preventing the instrumentalization of embryos for extraneous purposes is a token of a protection of all who are unable to protect themselves and to argue in favor of their own protection' (available at: http://www.ethikrat.org/_english/publications/stem_cells/Opinion_Import- HESC.pdf as of 10 December 2007).
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-
-
-
70
-
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63649086160
-
-
Indeed, it is constant in the French bioethics debate that not only do Laws on Bioethics, as all laws, need a majority for being adopted in Parliament, but also that they need more than that for only is a Law on Bioethics that is adopted beyond political cleavages, by a vast majority, a good Law on Bioethics. In other words, actors of the politico-legal debate on bioethics recurrently insist on how freed from the structures of party discipline do they engage upon legislative action; they claim to have an a-political (or a-partisan) approach on these issues. On all those aspects, see S. Hennette-Vauchez, 'Bioéthique, Biodroit, Biopolitique: Politique et Politisation du Vivant' in S. Hennette-Vauchez (ed.), above n. 31, 29.
-
Indeed, it is constant in the French bioethics debate that not only do Laws on Bioethics, as all laws, need a majority for being adopted in Parliament, but also that they need more than that for only is a Law on Bioethics that is adopted beyond political cleavages, by a vast majority, a good Law on Bioethics. In other words, actors of the politico-legal debate on bioethics recurrently insist on how freed from the structures of party discipline do they engage upon legislative action; they claim to have an a-political (or a-partisan) approach on these issues. On all those aspects, see S. Hennette-Vauchez, 'Bioéthique, Biodroit, Biopolitique: Politique et Politisation du Vivant' in S. Hennette-Vauchez (ed.), above n. 31, 29.
-
-
-
-
71
-
-
63649111202
-
-
This perspective is confirmed on a comparative scale, see T. Banchoff, above n. 23, 206 and 215 in the British case, While he effectively set the agenda [T. Blair] could not invoke party discipline on an issue that the Parliamentary leadership deemed a matter of conscience
-
This perspective is confirmed on a comparative scale, see T. Banchoff, above n. 23, 206 and 215 in the British case ('While he effectively set the agenda [T. Blair] could not invoke party discipline on an issue that the Parliamentary leadership deemed a matter of conscience').
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-
-
-
72
-
-
63649155590
-
-
See above n. 13. Indeed, such provisions are difficult to explain on a theoretical standpoint, for there is no need for Parliament explicitly to auto-enable itself to examine or re-examine a given piece of legislation, for what Parliament does, it can undo or redo.
-
See above n. 13. Indeed, such provisions are difficult to explain on a theoretical standpoint, for there is no need for Parliament explicitly to auto-enable itself to examine or re-examine a given piece of legislation, for what Parliament does, it can undo or redo.
-
-
-
-
73
-
-
63649104782
-
-
Arguably, this has been a feature of the pro-embryonic research discourse well before the ESC issue arose. See in that respect the analyses of M. Mulkay, who points at the critical role one-sided predictions of promised-by-embryo-research blessings played in weakening the strength of respect to unborn life paradigm, whilst these therapeutic horizons remained opportunistically silent on the level of uncertainty (if not of failure at the moment they were depicted); M. Mulkay, The Embryo Research Debate: Science and the Politics of Reproduction (Cambridge University Press 1997).
-
Arguably, this has been a feature of the pro-embryonic research discourse well before the ESC issue arose. See in that respect the analyses of M. Mulkay, who points at the critical role one-sided predictions of promised-by-embryo-research blessings played in weakening the strength of respect to unborn life paradigm, whilst these therapeutic horizons remained opportunistically silent on the level of uncertainty (if not of failure at the moment they were depicted); M. Mulkay, The Embryo Research Debate: Science and the Politics of Reproduction (Cambridge University Press 1997).
-
-
-
-
74
-
-
63649135154
-
-
2151-5 Code of Public Health, above
-
Art. L. 2151-5 Code of Public Health, above n. 49.
-
, Issue.49
-
-
Art, L.1
-
75
-
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63649113762
-
-
Decree [Décret] 2006-121 of 6 February 2006, Journal Officiel of 7 February 2006 (available at: http://www.agence-biomedecine.fr/fr/experts/doc/ Decret-2006-121-06022006.pdf, last visited 23 November 2007).
-
Decree [Décret] 2006-121 of 6 February 2006, Journal Officiel of 7 February 2006 (available at: http://www.agence-biomedecine.fr/fr/experts/doc/ Decret-2006-121-06022006.pdf, last visited 23 November 2007).
-
-
-
-
76
-
-
63649090983
-
-
Decree [Décret] 2006-121 of 6 February 2006: 'is to be considered as susceptible of enabling major therapeutic progress research on embryos and embryonic stem cells that pursues a therapeutic finality regarding particularly serious or incurable diseases as well as the treatment of embryonic or fetal affections' ['sont notamment susceptibles de permettre des progrès thérapeutiques majeurs au sens de l'article L. 2151-5 les recherches sur l'embryon et les cellules embryonnaires poursuivant une viseé thérapeutique pour le traitement de maladies particulièrement graves ou incurables, ainsi que le traitement des affections de l'embryon ou du foetus].
-
Decree [Décret] 2006-121 of 6 February 2006: 'is to be considered as susceptible of enabling major therapeutic progress research on embryos and embryonic stem cells that pursues a therapeutic finality regarding particularly serious or incurable diseases as well as the treatment of embryonic or fetal affections' ['sont notamment susceptibles de permettre des progrès thérapeutiques majeurs au sens de l'article L. 2151-5 les recherches sur l'embryon et les cellules embryonnaires poursuivant une viseé thérapeutique pour le traitement de maladies particulièrement graves ou incurables, ainsi que le traitement des affections de l'embryon ou du foetus].
-
-
-
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77
-
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63649093917
-
-
Significant parts of the report are cited in A. Claeys, above n. 38.
-
Significant parts of the report are cited in A. Claeys, above n. 38.
-
-
-
-
78
-
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63649163284
-
-
In French: 'le comité consideère que la finalité thérapeutique ne se limite pas aux recherches sur les applications thérapeutiques et que la recherche fondamentale comme préalable indispensable vers des applications thérapeutiques est incluse dans cette finalité'.
-
In French: 'le comité consideère que la finalité thérapeutique ne se limite pas aux recherches sur les applications thérapeutiques et que la recherche fondamentale comme préalable indispensable vers des applications thérapeutiques est incluse dans cette finalité'.
-
-
-
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79
-
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63649099333
-
-
It must be said here that another thing the 2004 Law did was establish a clear rule as to the fact that after 5 years of their creation, supernumerary embryos can be destroyed if they no longer are related to a 'parental [procreative] project, In 1994, the previous Bioethics Law had enabled the destruction of the embryos that had been obtained within an assisted reproduction protocol 5 years prior (or more) to its coming into force. But no provision of the law allowed destruction for the ones who would be created and conserved for 5 years (and more) after its entering into force. In that respect, the 2004 Law operates an important shift insofar as it perpetuates the idea that destruction of embryos is plainly lawful, and not only exceptional and punctual as under the 1994 Law. This is worth mentioning because once destruction is a lawful option, it becomes easier to promote embryonic research as another available option, for 'If the disposal of spare embryos is inevitable, it is diff
-
It must be said here that another thing the 2004 Law did was establish a clear rule as to the fact that after 5 years of their creation, supernumerary embryos can be destroyed if they no longer are related to a 'parental [procreative] project'. In 1994, the previous Bioethics Law had enabled the destruction of the embryos that had been obtained within an assisted reproduction protocol 5 years prior (or more) to its coming into force. But no provision of the law allowed destruction for the ones who would be created and conserved for 5 years (and more) after its entering into force. In that respect, the 2004 Law operates an important shift insofar as it perpetuates the idea that destruction of embryos is plainly lawful - and not only exceptional and punctual as under the 1994 Law. This is worth mentioning because once destruction is a lawful option, it becomes easier to promote embryonic research as another available option, for 'If the disposal of spare embryos is inevitable, it is difficult to see why washing an embryo down the drain would be morally preferable to using it in order to carry out valuable research': E. Jackson, Regulating Reproduction (Oxford University Press 2001) at 47.
-
-
-
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80
-
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36248966518
-
-
In that respect, it will be very interesting in the forthcoming weeks and months to see how this rationale adjusts to the publication of important scientific results establishing that pluripotence can be created and not only found in ESC - thus potentially conveying the idea that ESC may no longer be the unique source of interesting cells (see Takahashi et al., 'Induction of Pluripotent Stem Cells From Adult Fibroblasts by Defined Factors' (2007) Cell doi 10.1016/ j.cell.2007.11019
-
In that respect, it will be very interesting in the forthcoming weeks and months to see how this rationale adjusts to the publication of important scientific results establishing that pluripotence can be created and not only found in ESC - thus potentially conveying the idea that ESC may no longer be the unique source of interesting cells (see Takahashi et al., 'Induction of Pluripotent Stem Cells From Adult Fibroblasts by Defined Factors' (2007) Cell doi 10.1016/ j.cell.2007.11019
-
-
-
-
81
-
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33746197983
-
-
and V. Gretchen, 'Stem Cell Research: Four Genes Confer Embryonic Potential' (2006) 313 Science 27). Indeed, the 'therapeutic finality' was something critical trends of decision-makers eventually agreed was worthy enough for standing higher than reluctances linked to the 'untouchability' of the embryo; but that part of the consensus may well fall apart if the same finalities can be pursued without using (and destroying) embryos and thus (re)generate controversy.
-
and V. Gretchen, 'Stem Cell Research: Four Genes Confer Embryonic Potential' (2006) 313 Science 27). Indeed, the 'therapeutic finality' was something critical trends of decision-makers eventually agreed was worthy enough for standing higher than reluctances linked to the 'untouchability' of the embryo; but that part of the consensus may well fall apart if the same finalities can be pursued without using (and destroying) embryos and thus (re)generate controversy.
-
-
-
-
82
-
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63649093073
-
-
For an analogy, see H. Gottweis, Governing Molecules. The Discursive Politics of Genetic Engineering in Europe and the United States (MIT Press 1998) at 229: 'The policies for regulating and supporting biotechnology that began to develop in the United States and in Europe in the second half of the 1970s derived a considerable part of their legitimacy from references to the public, to public interest and more generally, to the health, the nutritional needs, and the economic situation of the population, This semiotic appropriation of collective identity did not remain unchallenged. From the early 1980s, throughout Europe, a disintegration of this coherent notion of the public and biotechnology was evident when biotechnology once again became the object of a broad public controversy
-
For an analogy, see H. Gottweis, Governing Molecules. The Discursive Politics of Genetic Engineering in Europe and the United States (MIT Press 1998) at 229: 'The policies for regulating and supporting biotechnology that began to develop in the United States and in Europe in the second half of the 1970s derived a considerable part of their legitimacy from references to "the public", to "public interest" and more generally, to the health, the nutritional needs, and the economic situation of the "population"... This semiotic appropriation of collective identity did not remain unchallenged. From the early 1980s, throughout Europe, a disintegration of this coherent notion of "the public and biotechnology" was evident when biotechnology once again became the object of a broad public controversy'.
-
-
-
-
83
-
-
79957337156
-
The European Union and the Governance of Stem Cell Research
-
For a similar discussion applied to the EU legal order, see
-
For a similar discussion applied to the EU legal order, see T.K. Hervey and H. Black, 'The European Union and the Governance of Stem Cell Research' (2005) 12 Maastricht Journal of European and Comparative Law, 11, 30-32.
-
(2005)
Maastricht Journal of European and Comparative Law
, vol.12
-
-
Hervey, T.K.1
Black, H.2
-
84
-
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63649143941
-
-
On the importance of mental images (and of their generalization throughout ultrasounds) of the unborn baby in the empirical management of abortions, see D. Memmi, Faire Vivre et Laisser Mourir. Le Gouvernement Contemporain de la Naissance et de la Mort (La Découverte 2003).
-
On the importance of mental images (and of their generalization throughout ultrasounds) of the unborn baby in the empirical management of abortions, see D. Memmi, Faire Vivre et Laisser Mourir. Le Gouvernement Contemporain de la Naissance et de la Mort (La Découverte 2003).
-
-
-
-
85
-
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0029195064
-
-
It has been argued that much of the debate over the admissibility of embryonic research was a matter of competing symbolic representations of the embryo; J.A. Robertson, Symbolic Issues in Embryo Research, 1995 25 The Hastings Centre Report 1, 37-38
-
It has been argued that much of the debate over the admissibility of embryonic research was a matter of competing symbolic representations of the embryo; J.A. Robertson, 'Symbolic Issues in Embryo Research' (1995) 25 The Hastings Centre Report 1, 37-38.
-
-
-
-
86
-
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63649156823
-
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See P.-L. Fagniez, Cellules Souches et Choix Ethiques (La Documentation Française 2006), available online at: http://lesrapports.ladocumentationfrancaise.fr/BRP/064000623/0000.pdf (last visited 23 November 2007).
-
See P.-L. Fagniez, Cellules Souches et Choix Ethiques (La Documentation Française 2006), available online at: http://lesrapports.ladocumentationfrancaise.fr/BRP/064000623/0000.pdf (last visited 23 November 2007).
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-
-
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87
-
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63649159456
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For such striking pictures, see P.-L. Fagniez, above n. 65, 44, 49, 67 and 76 (nesting cells).
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For such striking pictures, see P.-L. Fagniez, above n. 65, 44, 49, 67 and 76 (nesting cells).
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-
-
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88
-
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63649160552
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See the references cited above n. 65
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See the references cited above n. 65.
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-
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89
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63649127223
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P.-L. Fagniez, above n. 65, 44.
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P.-L. Fagniez, above n. 65, 44.
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-
-
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90
-
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63649128062
-
-
Emblematically, one reads in the Fagniez report (above, n. 65) 44 and 45: 'Embryonic stem cells thus can not be assimilated to embryos susceptible of developing into an autonomous individual, nor to potential embryos. They may not by themselves guarantee the development of a complete and viable individual' (emphasis added).
-
Emblematically, one reads in the Fagniez report (above, n. 65) 44 and 45: 'Embryonic stem cells thus can not be assimilated to embryos susceptible of developing into an autonomous individual, nor to potential embryos. They may not by themselves guarantee the development of a complete and viable individual' (emphasis added).
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-
-
-
91
-
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63649122279
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-
This seems to have been the case in other countries quite the same way. See for example, the following German National Ethics Council Opinion on 'The Import of Human Embryonic Stem Cells, above n. 51, 41: 'In so far as they are pluripotent, human embryonic stem cells are not embryos and are therefore worthy of protection not for their own sake but on account of their provenance, emphasis added
-
This seems to have been the case in other countries quite the same way. See for example, the following German National Ethics Council Opinion on 'The Import of Human Embryonic Stem Cells', above n. 51, 41: 'In so far as they are pluripotent, human embryonic stem cells are not embryos and are therefore worthy of protection not for their own sake but on account of their provenance' (emphasis added).
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92
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63649086159
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Fertilization gives rise to a single totipotent cell that will divide into other totipotent cells for about 4 days. Totipotent cells have total potential in that they can develop into all the tissues necessary for foetal development. After the fourth day, totipotent cells start to specialize and turn into pluripotent ones. Those are the ones ESC research is interested in, for they can be used as a source for developing any type of cells
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Fertilization gives rise to a single totipotent cell that will divide into other totipotent cells for about 4 days. Totipotent cells have total potential in that they can develop into all the tissues necessary for foetal development. After the fourth day, totipotent cells start to specialize and turn into pluripotent ones. Those are the ones ESC research is interested in, for they can be used as a source for developing any type of cells.
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93
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63649088592
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Paris Administrative Court of Appeal, see above n. 28.
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Paris Administrative Court of Appeal, see above n. 28.
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94
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63649118508
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In that perspective, ESC debate in France has operated in away opposite from that described by D. Nelkin who has argued that scientific controversies were increasingly framed as moral rather than technical ones: D. Nelkin, 'The Public Face of Science: What Can We Learn From Disputes' in D.H. Guston and K. Keniston (eds), The Fragile Contract: University Science and the Federal Government (MIT Press 1994) at 101.
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In that perspective, ESC debate in France has operated in away opposite from that described by D. Nelkin who has argued that scientific controversies were increasingly framed as moral rather than technical ones: D. Nelkin, 'The Public Face of Science: What Can We Learn From Disputes' in D.H. Guston and K. Keniston (eds), The Fragile Contract: University Science and the Federal Government (MIT Press 1994) at 101.
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97
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63649150885
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Art. L. 2131-4 Code of Public Health: 'In the case an anomaly responsible for one of the conditions listed in the second paragraph is diagnosed on the embryo, the two members of the couple, whenever they confirm that they no longer wish to carry out a parental project with this embryo, may consent to research being undertaken on the embryo under the conditions of art. L. 2151-5' ['En cas de diagnostic sur un embryon de l'anomalie ou des anomalies responsables d'une des maladies mentionnées au deuxième alinéa, les deux membres du couple, s'ils confirment leur intention de ne pas poursuivre leur projet parental en ce qui concerne cet embryon, peuvent consentir à ce que celui-ci fasse l'objet d'une recherche dans les conditions
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Art. L. 2131-4 Code of Public Health: 'In the case an anomaly responsible for one of the conditions listed in the second paragraph is diagnosed on the embryo, the two members of the couple, whenever they confirm that they no longer wish to carry out a parental project with this embryo, may consent to research being undertaken on the embryo under the conditions of art. L. 2151-5' ['En cas de diagnostic sur un embryon de l'anomalie ou des anomalies responsables d'une des maladies mentionnées au deuxième alinéa, les deux membres du couple, s'ils confirment leur intention de ne pas poursuivre leur projet parental en ce qui concerne cet embryon, peuvent consentir à ce que celui-ci fasse l'objet d'une recherche dans les conditions prévues à l'article L. 2151-5'].
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98
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63649132904
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Art. L. 2151-6 Code of Public Health: 'The importation of tissue or embryonic and fetal cells for research purposes is subject to an authorization delivered by the Biomedical Agency. Such authorization can be granted only if the fundamental principles listed under art. 16 to 16-8 of the Civil Code are respected' ['L'importation de tissus ou de cellules embryonnaires ou foetaux aux fins de recherche est soumise à l'autorisation préalable de l'Agence de la biomédecine. Cette autorisation ne peut être accordée que si ces tissus ou cellules ont été obtenus dans le respect des principes fondamentaux prévus par les articles 16 à 16-8 du code civil'].
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Art. L. 2151-6 Code of Public Health: 'The importation of tissue or embryonic and fetal cells for research purposes is subject to an authorization delivered by the Biomedical Agency. Such authorization can be granted only if the fundamental principles listed under art. 16 to 16-8 of the Civil Code are respected' ['L'importation de tissus ou de cellules embryonnaires ou foetaux aux fins de recherche est soumise à l'autorisation préalable de l'Agence de la biomédecine. Cette autorisation ne peut être accordée que si ces tissus ou cellules ont été obtenus dans le respect des principes fondamentaux prévus par les articles 16 à 16-8 du code civil'].
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99
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63649134732
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Art. L. 2163-4 Code of Public Health modifying the Penal Code: 'Creating embryos in vitro or otherwise cloning embryos for research purposes is punished by seven years' imprisonment and a €100.000 fine' [Le fait de procéder à la conception in vitro ou à la constitution par clonage d'embryons humains à' des fins de recherche est puni de sept ans d'emprisonnement et de 100 000 Euros d'amendé].
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Art. L. 2163-4 Code of Public Health modifying the Penal Code: 'Creating embryos in vitro or otherwise cloning embryos for research purposes is punished by seven years' imprisonment and a €100.000 fine' [Le fait de procéder à la conception in vitro ou à la constitution par clonage d'embryons humains à' des fins de recherche est puni de sept ans d'emprisonnement et de 100 000 Euros d'amendé].
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100
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63649133784
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See art. L. 2151-4 of the Code of Public Health [Code de la Santé Publique]: 'It is prohibited to create an embryo by means of cloning with a therapeutic finality' ['All creation of a human embryo by cloning in therapeutic finality is prohibited']. See accompanying art. 511-18-1 of the Penal Code that defines therapeutic cloning as a crime [un d́elit] and foresee for heavy fines and possible prison time.
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See art. L. 2151-4 of the Code of Public Health [Code de la Santé Publique]: 'It is prohibited to create an embryo by means of cloning with a therapeutic finality' ['All creation of a human embryo by cloning in therapeutic finality is prohibited']. See accompanying art. 511-18-1 of the Penal Code that defines therapeutic cloning as a crime [un d́elit] and foresee for heavy fines and possible prison time.
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101
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63649130913
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A non-binding Declaration was finally adopted on 9 March 2005; see http://daccessdds.un.org/doc/UNDOC/GEN/N05/249/40/PDF/ N0524940.pdf?OpenElement (last visited 27 November 2007).
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A non-binding Declaration was finally adopted on 9 March 2005; see http://daccessdds.un.org/doc/UNDOC/GEN/N05/249/40/PDF/ N0524940.pdf?OpenElement (last visited 27 November 2007).
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102
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33645930992
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-
For a thorough account of all the tensions and difficulties that account for the long delay between the Franco-German initiative of 2001 and the final declaration of 2005, see M. Arsanjani, Negotiating the UN Declaration on Human Cloning, 2006 100 American Journal of International Law 1, 164-179
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For a thorough account of all the tensions and difficulties that account for the long delay between the Franco-German initiative of 2001 and the final declaration of 2005, see M. Arsanjani, 'Negotiating the UN Declaration on Human Cloning' (2006) 100 American Journal of International Law 1, 164-179.
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103
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63649125008
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-
Many countries have chosen to engage, domestically, upon a solemn condemnation of reproductive cloning. In the United Kingdom for example, it is a criminal offense to place in a woman's womb 'a human embryo which has been created otherwise than by fertilization': Human Reproductive Cloning Act 2001, c. 23s.1(1). At the international scale, numerous are the covenants or declarations that condemn reproductive cloning; see among other examples the Protocol to the Oviedo Convention on Biomedicine and Dignity n. 168 of 1 January 1998 or the World Health Association Resolution 50.37 of 1997. On the rationale between that unanimous condemnation, and its intrinsic fragilities, see R. Brownsword, above n. 11.
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Many countries have chosen to engage, domestically, upon a solemn condemnation of reproductive cloning. In the United Kingdom for example, it is a criminal offense to place in a woman's womb 'a human embryo which has been created otherwise than by fertilization': Human Reproductive Cloning Act 2001, c. 23s.1(1). At the international scale, numerous are the covenants or declarations that condemn reproductive cloning; see among other examples the Protocol to the Oviedo Convention on Biomedicine and Dignity n. 168 of 1 January 1998 or the World Health Association Resolution 50.37 of 1997. On the rationale between that unanimous condemnation, and its intrinsic fragilities, see R. Brownsword, above n. 11.
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104
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63649116641
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For a similar but nonetheless more straightforward approach, see the Dutch 2002 Embryos Act that 'established a three to five years moratorium on the creation of embryos for research with the presumption that the ban will be lifted within that period of time', S. Halliday, above n. 12, 53.
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For a similar but nonetheless more straightforward approach, see the Dutch 2002 Embryos Act that 'established a three to five years moratorium on the creation of embryos for research with the presumption that the ban will be lifted within that period of time', S. Halliday, above n. 12, 53.
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105
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63649153060
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See among other examples the words of C. Haigneré (then Minister of Research) at the National Assembly, 18 March 2003: 'today, for reasons linked mostly to the general context that can therefore evolve in a couple of years, the creation of embryos solely for research purposes, throughout the technology of therapeutic cloning, does not seem justified' [aujourd'hui, pour des raisons tenant largement à des elements de contexte qui peuvent évoluer en quelques années, la creation d'embryons à des fins de recherche, par la technique du clonage, ne semble pas justifiée].
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See among other examples the words of C. Haigneré (then Minister of Research) at the National Assembly, 18 March 2003: 'today, for reasons linked mostly to the general context that can therefore evolve in a couple of years, the creation of embryos solely for research purposes, throughout the technology of therapeutic cloning, does not seem justified' [aujourd'hui, pour des raisons tenant largement à des elements de contexte qui peuvent évoluer en quelques années, la creation d'embryons à des fins de recherche, par la technique du clonage, ne semble pas justifiée].
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106
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63649086558
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P.-L. Fagniez, above n. 65
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P.-L. Fagniez, above n. 65
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107
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63649083132
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see all the recommendations at 157.
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see all the recommendations at 157.
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108
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63649093493
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P.-L. Fagniez, above n. 65, 92: 'The confusion between the technology itself and the justification of the technology that results from the words therapeutic cloning is harmful and prevents a good understanding of the problematic and the stakes. Therefore, some would prefer the expression somatic nuclear transfer to be used, in so far it designates the technology instead of the result of the cloning'.
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P.-L. Fagniez, above n. 65, 92: 'The confusion between the technology itself and the justification of the technology that results from the words "therapeutic cloning" is harmful and prevents a good understanding of the problematic and the stakes. Therefore, some would prefer the expression "somatic nuclear transfer" to be used, in so far it designates the technology instead of the result of the cloning'.
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109
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63649145772
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See for example the report by A. Claeys from the Parliamentary Observatory for Scientific and Technological Options, above n. 38. Notably, in this report, it is argued that the French ban on therapeutic cloning penalized the French scientific community that it should be lifted before the foreseen 2009 revision of the 2004 Law on Bioethics.
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See for example the report by A. Claeys from the Parliamentary Observatory for Scientific and Technological Options, above n. 38. Notably, in this report, it is argued that the French ban on therapeutic cloning penalized the French scientific community that it should be lifted before the foreseen 2009 revision of the 2004 Law on Bioethics.
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110
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63649138272
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We refer to the opposition between these two (deontological/ teleological) approaches the same way the European Group of Ethics does in order to characterize the diversity of axiological approaches of biomedical issues at the EU level; see EGE, Opinion n. 12, Ethical Aspects of Research Involving the Use of Human Embryos in the Context of the Fifth Framework Programme (available at: http://ec.europa.eu/ european_group_ethics/docs/avis12_en.pdf, as of 12 December 2007).
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We refer to the opposition between these two (deontological/ teleological) approaches the same way the European Group of Ethics does in order to characterize the diversity of axiological approaches of biomedical issues at the EU level; see EGE, Opinion n. 12, Ethical Aspects of Research Involving the Use of Human Embryos in the Context of the Fifth Framework Programme (available at: http://ec.europa.eu/ european_group_ethics/docs/avis12_en.pdf, as of 12 December 2007).
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111
-
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63649140487
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The Value of Consensus
-
See, R.E. Bulger, E.M. Bobby and H.V. Fineberg eds, National Academy Press, at
-
See B. Franklin, 'The Value of Consensus' in R.E. Bulger, E.M. Bobby and H.V. Fineberg (eds), Committee on the Social and Ethical Impacts of Developments in Biomedicine, Society's Choices: Social and Ethical Decision Making in Biomedicine (National Academy Press 1995) at 241, 244.
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(1995)
Committee on the Social and Ethical Impacts of Developments in Biomedicine, Society's Choices: Social and Ethical Decision Making in Biomedicine
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Franklin, B.1
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112
-
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63649164585
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To say it in E. Jackson's words: 'perhaps it simply needs to be admitted that the law is not capable of divining any absolute truths about the moral status of the embryo, and the only certainty is probably the continued absence of any consensus', E. Jackson, above n. 60, 229.
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To say it in E. Jackson's words: 'perhaps it simply needs to be admitted that the law is not capable of divining any absolute truths about the moral status of the embryo, and the only certainty is probably the continued absence of any consensus', E. Jackson, above n. 60, 229.
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113
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63649127222
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Especially thanks to the duty-led approach embedded in many legal usages of the human dignity principle; see on this topic: D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw Oxford University Press 2001
-
Especially thanks to the duty-led approach embedded in many legal usages of the human dignity principle; see on this topic: D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw (Oxford University Press 2001)
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114
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84897837153
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S. Hennette-Vauchez, 'When Ambivalent Principles Prevail. Leads for Explaining Western Legal Orders' Infatuation With the Human Dignity Principle' (2007) Legal Ethics 10(2) 193.
-
S. Hennette-Vauchez, 'When Ambivalent Principles Prevail. Leads for Explaining Western Legal Orders' Infatuation With the Human Dignity Principle' (2007) Legal Ethics 10(2) 193.
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