Bioethics in the jurisprudence of the Constitutional Court of the Republic of Latvia
Professor, Dr. iur. Sanita Osipova
Vice-President Sanita Osipova of the Constitutional Court
Brussels 11 June 2019
Ladies and gentlemen!
Humanists, first of all, but later enlightenment philosophers foregrounded the human being as the measure of all values and the point of reference. Constitutionalism, democracy and a state governed by the rule of law, i.e., a state that we recognise as being compatible with the contemporary world, were formed on the basis of liberal values. Simultaneously with the consolidation of the concept of humanism, to shape the new society and a state that would conform to it, two fundamental questions gained relevance: “who is a human being?” and “how a human being may be treated?” In the course of a couple of centuries the circle of subjects that were recognised as being “human beings”, or persons endowed with human dignity and equal in the fullness of their rights, significantly changed. First of all, at the end of XVIII century, the issue of women’s rights gained relevance because in the context of the French Declaration of the Rights of Man and of the Citizen, of 1789, “a human being” was only male. Almost at the same time discussions about the inadmissibility of slavery and serfdom began due to anti-humanism of these institutions. By providing an answer to the question: Who is a human being? the circle of equals was constantly expanded in the course of XIX and XX centuries, including in it both women and persons of diverse ethnic origins, and gradually the multicultural civic society, so well-known today, formed, with the principle of equality as one of its fundamental values.
However, by answering the question that has been raised: “Who is a human being?” by “All human beings are human beings!” we do not gain a comprehensive notion of the nature of a human being and the limits of the State’s discretion in adopting decisions that affect a person. The question regarding the scope of the State’s duties vis-à-vis a human being is equally important. XVIII -XX centuries, first and foremost, unravelled the legal limits that restricted a person’s rights by changing the penal policy, the nature of the institution of family, introducing the administrative procedure, providing the possibility to a person to turn against the State, etc. However, now, we have to construct together new legal limits, inter alia, between the discretion and responsibility of a human being and the State, within which society is to live sustainably in the future.
Legally, the very nature of a human being, in all its nuances, is protected by the concept of human dignity. Therefore, this research is dedicated to the concept of human dignity, revealing it through the requirements of bioethics, so relevant now. Due to the multi-dimensionality and noteworthy scope of the research issue, it will be limited to establishing the concept and content of bioethics, defining the principles of bioethics and revealing some principles of bioethics in interconnection with the concept of human dignity, as it is revealed in the jurisprudence of the Constitutional Court of the Republic of Latvia.
1. Bioethics: concept, approaches, and principles.
With the question of who a human being is and the genesis of fundamental rights, in XIX century also the public wish to interfere with the natural order of things, in the name of collective interests, gained relevance. Science, released from the restrictions set by religion, offered the possibility to free, preventively, society from the descendants of such individuals who might jeopardise the future welfare of the rest of the society. Another outcome of scientific development was the offer to improve an individual human being, in the interests of society in general, making him more handsome, healthier, smarter, etc.
Thus we, successively, arrive at the need of defining legally the point of reference for the existence of a human being, which enters the scope of rights protection, as well as what kind of treatment of a human being is admissible.
Legal answers to these questions cannot be found without the discourse on values and ethics. Since the second half of XX century, to deal with the new ethical problems that were, first of all, encountered by medical practitioners, representatives of various areas of science joined the discussion, each of them providing answers, from his own vantage point, regarding those limits that should be set in the treatment of a human being.
In assessing the possible risks of harming, which the development of science could cause to nature, the concept “bioethics” was introduced in 1970 to denote the “survival science” in the ecological field. However, soon afterwards, André Hellegers applied the term of bioethics to the science of medicine to create a branch of professional ethics to limit the threats that the science of medicine could cause for the human being himself and his selfhood. Bioethics pertains to a number of issues that are of vital importance for society, for example, euthanasia, organ transplants, reproductive medicine, the limits and methods of patient care.
The State may not stay outside these processes since, traditionally, the State protects the values that are most important for the society and moral norms by regulating these within the legal system. It is the State who, as the decision-making body of the nation, in the name of collective will has the obligation to adopt political decisions on all relevant matters. It is the legislator who has been authorised by the nation to perform this duty. The legislator’s decisions that are not adopted today, under the influence of rapid scientific development, may be overdue tomorrow. New political concepts have entered the range of national politics, alongside economic, social, international policy, among others, “tanato-policy” or the policy of death, which denotes the policy of the state in matters that pertain to the process of dying, abortions, euthanasia, discontinuing futile activities of a physician. The second new line in the national policy, in the context of bioethics, is the line of protecting human life and quality life, pertaining to the policy of healthcare, occupational medicine, policy on demographic control, environment protection, etc. Science offers to introduce significant changes into the life of society; therefore, the whole legal system needs to be re-made to regulate the relationships provided by the new scientific possibilities. At the same time, both the legislator and those applying legal norms must respect the principles of bioethics, of which I would like to mention the following as, in my opinion, the most important ones:
- in deciding on any issue, social values, first and foremost, human dignity, must be taken into account,
- the principle of awareness of moral responsibility, deciding truly and fairly,
- physical life is a value, whereas health is a value that is subordinated to and follows from life,
- the principle of subsidiarity, i.e., in examining a benefit to a person, it must be balanced with the interests of society.
Moreover, it should be taken into account that respect for the principles of bioethics in national policy, since the last decade of XX c., has been promoted and determined by a number of international acts (conventions, declarations, international treaties),
Thus, it can be concluded that over the last 50 years three dimensions have evolved in bioethics: the dimensions of applied ethics, national law and international law, which through reciprocal control constitute the totality of requirements, which, first and foremost, restrict uncontrolled scientific experiments with human beings to promote the protection of a person’s human rights.
2. Jurisprudence of the Constitutional Court: some principles of bioethics.
2.1. The principle of human dignity.
All principles of bioethics have been created to protect the human being. In this respect, bioethical requirements correlate with a person’s fundamental rights and legally they should be examined within the scope of human dignity (in the case of Latvia, the Preamble to the Satversme and Article 95), a person’s private autonomy or the right to self-determination (Article 96 of the Satversme), the right to healthcare (Article 111), the right to benevolent environment (Article 115), and other fundamental rights. However, to protect the human being, by differentiating between the natural and admissible and the unnatural and the inadmissible, with respect to treatment or the conditions created for a human being, first of all, the scope of the concept of human dignity needs to be clarified. It is exactly in this respect, i.e., development of the concept of human dignity and its consolidation in a binding way in society, to my mind, is the most important area of a constitutional court’s work. Therefore, the concept of human dignity is the first aspect that I would like to point out in the jurisprudence of the Constitutional Court. The Constitutional Court has revealed the scope of human dignity in its various aspects in a number of rulings. The Constitutional Court underscores: “Human dignity and the value of each individual is the essence of human rights. Therefore, in a democratic state governed by the rule of law, both the legislator, in adopting legal norms, and the party applying the legal norms, in the application thereof, must respect human dignity.” Another important finding in the jurisprudence of the Constitutional Court, which I would like to highlight, is: “The legislator must take “anthropocentric” perspective on the environment, i.e., viewing it as the environment of a human being or such environment that is necessary for human survival and for providing for human needs. The right to live in a benevolent environment primarily protects the person, his or her interests, i.e., the possibility for a person to live in such an environment, where he or she can fully function and develop, and where human dignity is respected.” However, on this occasion, speaking about human dignity, I would like to turn to one of the most recent judgements, i.e., the judgement of 5 March 2019 in case No. 2018-08-03. Until now, In the cases I mentioned above, the human dignity was recognized as applying during the entire lifetime of a person. Whereas since this case the Constitutional Court had to decide on the dignity of a deceased person and attitude towards burying the body of the deceased compatible with it.
The norms that were contested in the case were Para 18 of the Binding Regulation of the Jūrmala City Council of 4 September 2014 No. 27 “Regulation on the Operations and Maintenance of the Municipal Cemeteries of Jūrmala City”: “The leaseholder acquires the right to rent a grave by concluding a rental agreement with the company that maintains the cemeteries.”, and Para 20: “The leaseholder of the grave pays to the company that maintains the cemeteries an annual rental payment, which is approved by the decision of the Jūrmala City Council.” The case was initiated on the basis of the Ombudsman’s application; in the framework of verification procedure, he had concluded that the Jūrmala City Council had established a rental payment for using a grave, thus violating the principle of a state governed by the rule of law, enshrined in Article 1 of the Satversme. At the first sight the case might seem rather simple – in Latvia, a local government has the right to issue binding external regulatory enactments only strictly within the framework of the authorisation granted by the legislator. Moreover, local governments’ regulations are on the lowest step of the hierarchy of legal norms and, inter alia, the legality thereof is supervised by the Ministry of Environment Protection and Regional Development. The Constitutional Court, in examining the legality of external regulatory enactments issued by local governments, has found that it followed from the principle of legality and separation of powers that the local government has the right to issue binding regulations only in cases stipulated in law, within the framework of law, and they cannot be incompatible with the norms of the Satversme as well as other legal norms of higher legal force. Whereas in the case under review, the Court found rather early on that a legislator’s authorisation of this kind had been absent.
The Court reviewed the legality of the conteted norms in the light of the Article 1 of the Constitution. It provides: “Latvia is an independent democratic republic.” Article 1 of the Satversme defines both a part of the state law identity of our state and also the identity of the state order. In case No. 2018-08-03, the Constitutional Court, on the one hand, had to decide on the compliance with the principle of separation of powers, examining the relationship between the central and the municipal power, i.e., whether the central power had authorised the municipal power to act. However, on the other hand, the Court also had to decide on the matter that is very important in our culture – appropriate burial of a person and maintaining his grave in the future because the contested regulation pertained to the field of burials and maintenance of graves. These issues directly pertain to the dignity of the particular person – the deceased person and also values that are important for the Latvian society. The Constitutional Court found that the protection of human dignity after death was based also on cultural and religious traditions, which form a part of the Latvian folk wisdom, which is an autonomous legal notion included in the Preamble to the Satversme. The Latvian folk wisdom (in Latvian – dzīvesziņa) is a concept that is difficult to translate into a foreign language. Philosopher Roberts Mūks defines it as follows: “the Latvian folk wisdom is a totality of mental and moral values, which, in the course of the cultural historical development, have been cultivated by the people, determines and shapes the Latvian identity, its core and culture as a universal human value of the European and the global culture.” Respect towards the deceased person and culture of cemeteries, which, inter alia, has been included in the Latvian cultural canon, are among these values and, obviously, influence the scope of bioethical principles within the Latvian cultural space. The Constitutional Court, in examining, for the first time in its jurisprudence, the protection of human dignity after death underscored that “the State must protect human dignity, identity and integrity both during the lifetime of a person and after his death.” The Constitutional Court noted that “[h]uman dignity comprises also a person’s right to decide about his body. It means respecting the wish expressed during a person’s lifetime to be buried in a certain way or donating one’s body for scientific research.” Through the latter finding, the Constitutional Court emphasised the connection between human dignity and a person’s right to self-determination, by adopting certain decisions about one’s body, which must be respected not only during a person’s lifetime but also after death. Whereas by referring to a person’s right to donate his body to scientific research, the Constitutional Court became involved in a discussion that falls within the bioethical discourse.
2.2 Physical life is a value, whereas health is a value subordinated to life and following from it.
Article 93 of the Satversme provides: “The right to life of everyone shall be protected by law.” The right to life is absolute and is not subject to any restrictions. The scope of Article 111 of the Satversme, in turn, comprises a person’s life as a value, “The State shall protect human health and guarantee a basic level of medical assistance for everyone.” The Article includes two rights: protection of health and healthcare in a limited scope. As mentioned above, life and health are closely interconnected, correlated values. In examining the scope of Article 93 of the Satversme, the Constitutional Court has recognised that the right to life ensures a person’s physical existence as a pre-condition for his spiritual existence or any of his actions and conduct. The right to life constitutes the pre-condition for exercising all other fundamental human rights. The State has the obligation to protect a person’s right not only against its own actions but also against actions by other persons. Moreover, this obligation of the State comprises not only issuing norms aimed at protecting human lives but also establishing an effective system for monitoring the enforcement of these norms. Both the right to life and the right to health are broad in their scope since they protect both individual and collective values. “The promotion of health and social development for their people is a central purpose of governments that all sectors of society share”, as stated in Par 1 of Article 14 of UNESCO Universal Declaration on Bioethics and Human Rights. The Latvian legislator has stipulated: “Health is the physical, mental and social well-being, the natural basis of the existence and survival of the State and the nation.”
Below, I shall highlight some findings by the Constitutional Court, made while examining health related matters. First of all, the State’s obligation to ensure healthcare. The Constitutional Court has examined a number of cases pertaining to the question, whether and the scope in which the State has the obligation to reimburse to person the medicines required for prolonging his life expectancy or regaining or stabilising health.
The issue of ensuring in-patient or out-patient healthcare and reimbursement of medicines is acute in the contemporary world. Although scientific discoveries allow using new equipment in healthcare, tools and medicines, the application of which change the course of treatment radically, they also raise the question of accessibility and quality of the available healthcare to public. The international community is concerned about the growing inequality in these matters. Innovations offered by science are expensive, therefore the question gains relevance: to what extent it is a person’s own duty and responsibility to take care of one’s health, and to what extent it is the State’s obligation vis-à-vis the citizen in healthcare , increasing the life expectancy and the quality of life. There is an opinion that the State’s obligation is limited to setting up an effective and accessible system of healthcare. Understanding by “accessibility” that certain most necessary healthcare services are available to all. However, the State is not the only subject that should assume responsibility for a person’s health. First and foremost, a person himself is responsible for one’s health. Section 5 of the Latvian Law on Medical Treatment provides: “Everyone has a duty to take care of and everyone is responsible for his or her own health, the health of the nation, and the health of his or her relatives or dependants.” Hence, a person himself is responsible for his health but co-responsibility lies upon the State and society in general. The society, basically, provides its support to a person’s health through various forms of charity, both by members of society donating material goods and time, and medical practitioners working pro bono. The Latvian State has such a regulatory system that allows a person experiencing health problems to turn to other persons for help. In accordance with Section 2 of the Public Benefit Organisation Law, activities that are aimed at health promotion and prevention of disease must be recognised as activity for public benefit. Persons, who donate to public benefit organisations, are eligible to the tax exemptions established in laws.
The Constitutional Court, in reviewing the State’s obligation to reimburse for the medicines purchased for out-patient treatment, has found: “As the result of rapid development of contemporary medicine and science, a vast range of medicines and medical equipment intended for treating various diseases is available. However, the State’s financial resources are limited and it cannot reimburse to each citizen all medicines, medical equipment and treatment that he needs.” The Constitutional Court, reviewing, inter alia, the scope of support for purchasing medicines to be granted by the State, has found: “The State’s obligation to grant to everyone medicines free of charge does not follow from the right to life.”
Simultaneously, life as a value and health, subordinated to it, should be examined in interconnection with human dignity. Therefore, the Constitutional Court has recognised that a person has the right to decide about his body, which includes the right to inflict harm on one’s health, even to commit suicide. This finding complies with the principle of a patient’s autonomy. However, the Constitutional Court’s jurisprudence comprises also the finding that an individual’s health has not only personal but also social value. This finding was expressed in reviewing the State’s right to establish criminal liability for using drugs. However, in the framework of the principle of a person’s private autonomy, the world is currently overwhelmed by the wave of decriminalisation of the use of formerly illicit drugs. A contemporary State must make decisive choices regarding the limits of a person’s freedom within the discourse on a person’s social value. This is a fundamental issue, pertaining both to a person’s right to private autonomy and the right to life and healthcare, as well as many other fundamental rights. For example, whether the fact that a person who, by exercising private autonomy, intentionally neglects or even ruins his health, has the right to demand resources of the state, i.e., the collective resources, complies with ethical requirements.
In this area, the constitutional courts could contribute significantly. Although at present a law is the result of a political compromise. A constitutional court, however, considers and examines, which leads to the fairest solution in the particular case.
In summary or for reflection
The concept of human dignity and the principle of personal self-determination derived from it, at the time, were established to allow a person to lead a life worthy of a human being, not to be used for aims contrary to it. I.e., whether the concept of human dignity, which sets a high standard for the State’s respect for a person, restricts also the freedom of a person to act contrary to human dignity. Should the society and the State do everything possible with respect to a person, who does not respect himself, does not respect society as an environment for full-fledged human life and has done everything possible to ruin his health? This, to my mind, is one of the most essential questions, to which the constitutional courts, abiding by the bioethical principles, should provide an answer already today, balancing the person’s own responsibility with that of the State regarding respecting the human dignity and retaining humanity also in the age of technologies.
 Satversmes tiesas 2017. gada 19. decembra sprieduma lietā Nr. 2017-02-03 19.1. punkts.
 Satversmes tiesas 2012. gada 2. maija sprieduma lietā Nr. 2011-17-03 12.3. punkts.