Med. pravo., 2016; 1(17): 25-33
candidate of legal sciences, associate professor of the Department of public health, medical law and organization of pharmacy of the Kazakh Medical University of Continuing Education
Some questions on legal regulation of bioethics issues in the legislation of the Republic of Kazakhstan
In this paper, the author argues that the development of cardiac surgery, neurosurgery, transplantology, radiation medicine, genetic engineering led to the need of society to control over a number of medical procedures due to the nascence of new biotechnologies in everyday medical practice. The author notes there is a need of serious discussion on issues related to bioethical trends in medicine by the representatives of both medical and legal communities, philosophers, all stakeholders etc.
The development of bioethics has given an extra push another important issue – the legal regulation of bioethical issues based on respecting, protecting and fulfilling human rights. In this article, only a few difficult questions of the legal regulation of bioethical issues are discussed. Bioethical issues go beyond mere medical practice, as they are closely related to issues of universal respect for and observance of human rights and therefore require proper legal regulation. The author emphasizes that medical necessity, law and morality should be merged into a single piece of legislation.
Taking as an example the Republic of Kazakhstan, the author shares her thoughts on the contemporary legal regulation and those difficulties, which arise in practice, the conflicts of laws and the gaps in regulation that need to be filled in order to provide the promotion of universal respect for and observance of human rights.
In addition, article offers a general analysis of not only the national law of the Republic of Kazakhstan but also international human rights standards and practices of the European countries in the area of organ, tissue and cell transplantation and surrogate motherhood.
The author summarizes certain key provisions of the Code of the Republic of Kazakhstan on the Health of the People and the Healthcare System with a focus on organ, tissue and cell transplantation and surrogate motherhood. She notes such bioethical issues as auxiliary reproductive technologies, reproductive technologies and surrogate motherhood, banning all forms of human cloning and permitting euthanasia, blood donation, transplantation of human cells, tissues and organs, carrying out medico-biological investigations and experiments, preclinical (not clinical) and clinical trials are legally regulated in the Republic of Kazakhstan. However, a large number of provisions on these bioethical issues enshrined in the Code needs further discussion and improving. For example, provisions on one of the biggest problems in the sphere of health care and human rights not only in Kazakhstan but also worldwide – organ, tissue and cell transplantation.
Accordingly, the key legal issue on transplantation is associated with the establishment of two principles in relation to the donor: the presumption of consent to organ donation and presumptive disagreement with it. The author argues the presumption of disagreement should be a fundamental principle in matters of removal of organs and tissues because it stands on the position of respect for and observance of human rights above all other things. In matters of organ, tissue and cell transplantation there is no place for dilemma what should be given priority – medical necessity or legal protection of patients.
It is noted that the problem of legitimization of the consent given by the person to posthumous organ donation for transplantation has been one of the most talked about during the last two years, as disagreement with post mortem tissue or organ removal enshrined in the Code seems to be vague and unclear. Firstly, it is not clear what ways of obtaining of consent or disagreement should be – oral or written. Secondly, the legislation does not specify written and non-written consent forms. Finally, it is not clear if notaries should certify the consent given in written form. The author believes that any document (form) containing the agreement or disagreement with post mortem tissue or organ removal should be certified by notaries. However, such certification requires making amendments to the notary law.
As to surrogate motherhood, at first glance, in Kazakhstan it is based on a sufficiently developed legal framework ensuring the protection of rights and interests of both a surrogate mother and married couple. A review of the national law of the Republic of Kazakhstan shows clear gaps and highlights areas of concern not yet sufficiently addressed. Such issues as the right of a woman who is not married to resort to the "help" of a surrogate mother, the right of husband and wife who are the citizens of another state to resort to the "help" of a surrogate mother, and finally the question under what circumstances a married couple may abandon the child remain controversial. It is underlined surrogacy is not simple but extremely complex arrangement.
The author also argues that maternity protection is an important constitutional principle. Barring unmarried women to use surrogacy as a family formation option limits women's rights in the sphere of health care including the right to access to sexual and reproductive health services that help them realize their reproductive goals.
At the same time, the authors note that provisions on concluding a contract between the surrogate mother on one side and husband and wife who are the citizens of another state on the other need concretization, bearing in mind that this kind of reproductive technologies is not allowed in all countries. In particular, surrogacy is legally prohibited in France, Germany, Austria, Moldova, Estonia and some other countries.
In addition, in the author’s opinion, provisions on legal grounds for abandoning the child by the spouses should be reconsidered. Considering the legal protection of contracting parties, the rights of the child should be respected, protected and ensured. Governments should ensure that children are properly cared.
Thus, after proper analyzing the existing law the author came to the conclusion that bioethical issues are far beyond the frames of the simple medical activities and closely related to issues of universal respect for and observance of human rights. Therefore, there is a need for more discussion among the researchers of bioethical issues and afterward-proper legal regulation of them.
Bioethics is a sphere of multidisciplinary researches, where medical moral and legal aspects are combined. In this article some legal issues, which are connected with certain bioethics directions are analyzed, in particular transplantation and surrogate motherhood. Taking as an example Republic of Kazakhstan the author shares her thoughts about existent state of legal regulation, those difficulties, which arise in practice, gaps and conflicts of laws, which need to be combated in order to provide observance of human rights and interests. Author analyzes not only the national legislation but also draws parallels with international standards and pointing to the experience of the European countries in the aspect of the realization of the right to transplantation of human organs and surrogate motherhood. It is concluded that bioethical issues come far beyond the frames of the simple medical activity, they also relate to the issues of the respect and observance of human rights, therefore, certainly they need proper legal regulation and in depth scientific research.
Key words: law, moral, bioethics, transplantation, surrogate motherhood.
1. N.N.Sedova. (2007) Pravovye osnovy biojetiki. Osobennosti stanovlenija medicinskogo prava v Rossii. Pravovoj monitoring. M. FGU NCPI pri Ministerstve justicii Rossii. Vypusk 4, Chast 1, p. 15
2. A.Ivanilova. Kazahstancam katastroficheski ne hvataet donorskih organov Retrieved from mk-kz.kz/articles/2015/09/30/kazakhstancam-katastroficheski-ne-khvataet-donorskikh-organov.html
3. V Kazahstane oficialno zaregistrirovano 260 sluchaev surrogatnogo materinstva. Retrieved from http://www.zakon.kz/4662299-v-kazakhstane-oficialno.html
4. T. M. Dzhusubalieva, N. N. Kobzar. (2013) Pravovye i jeticheskie problemy surrogatnogo materinstva v Respublike Kazahstan. Reproduktivnaja medicina, ezhekvartalnyj nauchno prakticheskij zhurnal, 3, 4, 11
5. E. Muhamedzhanov. (2012) K voprosu o subjektah dogovora surrogatnogo materinstva v RK. Jurist, 10, p. 45.