ART – art, method, technique, technology. Where is the man and his dignity?Polish perspective

https://doi.org/10.63189/MUKB7643

1. Applications of biology and medicine and human dignity

In the Preamble to the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Applications of Biology and Medicine, the Member States of the Council of Europe, other States, and the European Community have defined themselves as:

Convinced of the need to respect the human being, both as an individual and as a representative of the human species, and recognising the importance of ensuring the dignity of the human being; Aware that the misuse of biology and medicine can threaten human dignity; […] With the intention of creating the necessary measures to guarantee the dignity of the human being and the fundamental rights and freedoms of the person in the field of biological and medical applications.^[1]

These declarations and commitments are further developed in the operative sections of the Oviedo Convention. Specifically, with regard to human dignity, in Article 1 (Purpose and Object), which states:

The Parties to this Convention protect the dignity and identity of the human being and guarantee to every person, without discrimination, respect for his or her integrity and other fundamental rights and freedoms with regard to the applications of biology and medicine. States Parties shall take the necessary measures in their domestic law to ensure the effectiveness of this Convention.^[2]

2. Assisted reproduction techniques, that is, assisted procreation methods

According to the Position of the Polish Gynaecological Society^[3] on assisted reproduction techniques in the treatment of infertility:

Assisted reproduction techniques are various therapeutic methods aimed at achieving pregnancy in a woman, taking place thanks to medical interference in the natural course of procreation. This intervention involves the omission or modification of one or more stages of reproduction.^[4]

ART methods include insemination, polyovulation obtained by controlled extra-hormonal hyperstimulation, followed by puncture of Graafian follicles and egg retrieval, intratubal transfer of gametes (GIFT), intratubal transfer of the zygote (ZIFT), classic in vitro fertilization (IVF), and in vitro variants with micro insemination (in vitro artificial insemination).^[5]

As indicated in the literature, assisted reproductive technologies can either maintain or alter the genetic bond between parents and the child. In the cases where the bond is preserved, the female and male gametes used for the medical procedure come from the individuals who will raise the resulting offspring. Here, biological parenthood aligns with social parenthood. In the latter case, there is a change in the genetic bond between the offspring and at least one parent.^[6]

3. Constitutional foundations of human dignity in Poland

The Oviedo Convention, cited above, implies the obligation of states to protect the dignity and identity of human beings. This means that legal conditions should be created in the national law of the States Parties to the Convention that implement the Convention's postulates, including ‘respect for its [i.e. the human being’s] integrity and other fundamental rights and freedoms with regard to the applications of biology and medicine’.^[7] Poland signed the Convention in 1999, but has not yet (as of July 2024) ratified it. Therefore, it is not a source of law generally applicable in Poland. However, this does not mean that the principle of human dignity does not apply in Poland and that the basic standards of human rights protection resulting from it are not respected. Dignity as a guiding idea, value, constitutional principle, and interpretative rule of the constitutional status of an individual in the state is indeed a novelty in Polish constitutionalism, but as a democratic state under the rule of law, after 1989, it has acquired a definite and unquestionable legal status.^[8]

It follows from Article 30 of the Constitution of the Republic of Poland of 2 April 1997 that dignity is an innate and inalienable feature of the human being and it is the source of freedom and rights of man and citizen.^[9] Dignity is inviolable, and it is the duty of public authorities to respect and protect it.^[10]

The lack of a definition of ‘legal dignity’ in the Constitution of the Republic of Poland, while indicating its features in Article 30, means that the content of this analysed principle should be interpreted from the Preamble to the Constitution and the content of Article 30.^[11] In the Preamble, the legislator called on ‘All those who will apply this Constitution for the good of the Third Republic of Poland [...], to do so while taking care to preserve the inherent dignity of the human being’. It follows from this formulation that dignity is one of the basic principles (mentioned in the first place) on which the constitutional order of the state is based.^[12] On the other hand, in Article 30, dignity is defined as innate, inalienable, and inviolable, which expresses its axiological nature. In addition, the constitution-maker recognised dignity as a source of freedom and human and civil rights and obliged public authorities to respect and protect it, thus giving dignity a normative character.^[13]

4. Obligations of public authorities with regard to human dignity

The use of assisted reproductive technologies is associated with the obligation of public authorities to respect and protect human dignity. This obligation, resulting from the Oviedo Convention, as well as other acts of international law, has been confirmed by Article 30 of the Polish Constitution: ‘This expresses the position that the constitutional provision of the principle of dignity is prescriptive (binding) and not descriptive; This principle will therefore only make real sense when it is sufficiently protected against infringements.’^[14] In this way, respect for and protection of dignity are part of the broadly understood concept of human rights protection, which means all measures and activities aimed at ensuring and implementing human rights.^[15]

The obligation of public authorities to respect and protect dignity includes, in the subjective scope, persons performing the functions of bodies and persons working in the offices of administrative bodies of the legislative, executive and judiciary, as well as bodies and persons of the non-public sphere to whom public tasks have been commissioned.^[16] The duty to respect and protect dignity ‘includes ensuring that everyone and in every reasonable situation is adequately protected’^[17] and is a prohibition on public authorities to take actions that may be considered violations of dignity.

An interpretation of the wording concerning dignity contained in the Preamble and Article 30 allows us to conclude that the Polish constitution-maker accepts not only the vertical obligation of public authorities to respect fundamental values and freedoms and rights of man and citizen, but also their horizontal application, that is, it obliges individuals to respect values, freedoms and rights.^[18] Moreover, such a legal structure should be considered extremely important from the viewpoint of the status of the individual in the state.

The commentaries to Article 30 of the Constitution of the Republic of Poland noted that the protection of dignity is unlimited. This means that it covers not only a living person (i.e. from the moment of birth to death) but also from the moment of conception (which is extremely important from the viewpoint of the above considerations) and after the death of the person. This involves legal protection of the human foetus, provided for at the statutory level,^[19] and criminal provisions providing for the protection of human corpses. Adopting such a broad – in temporal scope – understanding of human dignity ‘one can understand respect for the very essence of humanity both before and after birth, as well as after death’.^[20] These findings are of fundamental importance in the case of the title issue of necessary measures guaranteeing the dignity of the human being and the fundamental rights and freedoms of the person in the field of biology and medicine applications, especially in the case of medical interference in the natural course of procreation.

The duty of public authority encompasses both the respect and protect dignity. Simply put, respecting dignity means ensuring that public authorities do not violate it through their actions, while protecting dignity involves establishing a system of procedures (i.e. orders and prohibitions) to prevent any violations and threats to dignity.^[21] It is no coincidence that the constitution-maker used two terms whose legal meaning is similar, but not identical. The obligation to respect human dignity requires public authorities to act in accordance with both positive and negative dimensions of this principle, as outlined by the Constitutional Tribunal. The Tribunal stated:

All actions of public authorities should, on the one hand, take into account the existence of a certain sphere of autonomy, within which a person can fully fulfil himself socially, and on the other hand, these actions may not lead to the creation of legal or factual situations that deprive the individual of a sense of dignity.^[22]

The positive aspect of respecting human dignity (i.e. status activus) is the obligation of public authorities to take specific actions to uphold dignity and protect individuals from situations that undermine it. Status activus, at a general level, means an obligation primarily on the part of the legislature to take legislative action aimed at ensuring the implementation of a constitutional norm. Similar tasks apply respectively (to a lesser extent) to the executive and judicial authorities and to local governments, which, in accordance with Article 16 of the Constitution of the Republic of Poland, participates in the exercise of public authority. Respect for human dignity at the specific level is a guarantee of the implementation of constitutional freedoms and rights.^[23]

The negative aspect of respect for human dignity (i.e. status negativus) means that public authorities refrain from encroaching on the sphere whose boundaries are determined by autonomy, within which a person fulfils himself, for example, socially. Status negativus is thus ‘a prohibition on undertaking by public authorities (and persons forming these authorities) any actions that would violate human dignity.’^[24]

In addition to respecting dignity by public authorities, Article 30 of the Constitution imposes a duty on public authorities to protect it. This involves taking measures to prevent dignity violations by various entities. Therefore, the criteria (principles) for determining the premises for violating human dignity are extremely important. Most often, these include: the criterion of identity, according to which dignity is the same for all people; the criterion of superiority, meaning that dignity can never be a subordinate good, subject to limitations due to other values; the criterion of objectivity, which shows that the violation of dignity occurred even in the absence of subjective feeling on the part of the objectively harmed person; and the criterion of concreteness, which means that it is the responsibility of the determining authority to examine and assess all circumstances of the conduct in question.^[25] In connection with these criteria, the executive is obliged to shape the process of interpreting the law in an appropriate manner, while the duty of the judiciary is to properly apply the provisions of individual branches of law.^[26] Such an understanding of the term ‘protection’ in relation to dignity leads to the conclusion that the protection of human dignity can be properly implemented only in a situation where the violation of human dignity is associated with legal sanctions and the inability to legalise the action that contributed to the violation of dignity.^[27]

^[1] Convention for the protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164). In other words, the Convention on Human Rights and Biomedicine, adopted by the Committee of Ministers on 19 November 1996. https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=164, accessed 20 July 2024.

^[2] ‘The Convention is the first legally-binding international text designed to preserve human dignity, rights and freedoms, through a series of principles and prohibitions against the misuse of biological and medical advances. The Convention's starting point is that the interests of human beings must come before the interests of science or society. It lays down a series of principles and prohibitions concerning bioethics, medical research, consent, rights to private life and information, organ transplantation, public debate, etc.’, https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=164, accessed 20 July 2024.

^[3] Currently: The Polish Society of Gynecologists and Obstetricians.

^[4] A. Dowbór-Dzwonka, B. Cegła, M. Filanowicz, E. Szymkiewicz, Techniki wspomaganego rozwoju a naprotechnologia, [Techniques of supported development and naprotechnology], ‘Zdrowie Publiczne’ 3(122) 2021, p. 323 [322–328].

^[5] Wspomagana prokreacja ludzka. Zagadnienia legislacyjne [Assisted human procreation. Legislative Issues], ed. T. Smyczyński, Poznań 1996; J. Radwan, Infertility and Assisted Reproduction, Poznań 2003.

^[6] A. Dowbór-Dzwonka, B. Cegła, M. Filanowicz, E. Szymkiewicz, Techniki wspomaganego rozwoju…, p. 323.

^[7] Oviedo Convention.

^[8] In the Polish literature on the subject, human dignity is defined as ‘the fundamental value of the constitutional order’. J. Hołda, Z. Hołda, Prawa człowieka w wewnętrznym porządku prawnym [Human Rights in the Internal Legal Order], [in:] J. Hołda, Z. Hołda, D. Ostrowska, J. A. Rybczyńska, Prawa człowieka. Zarys wykładu, [Human Rights. An Outline of a Lecture], Zakamycze 2004, p. 37. Cf. K. Complak, Uwagi o godności człowieka oraz jej ochrona w świetle nowej Konstytucji [Remarks on Human Dignity and Its Protection in the Light of the New Constitution], ‘Przegląd Sejmowy’ 5/1998, p. 43.

^[9] I wrote more about human dignity in the Constitution of the Republic of Poland, among others, in: P. Sobczyk, Konstytucyjna zasada konsensualnego określania stosunków między Państwem a Kościołem Katolickim [The constitutional principle of consensual determination of relations between the state and the Catholic Church], Warszawa 2013, pp. 115–119.

^[10] F.J. Mazurek wrote primarily about human dignity in Polish, such as in Godność osoby ludzkiej podstawą praw człowieka [The Dignity of the Human Person as a Basis of Human Rights], Lublin 2001. See also J. Krukowski, Godność człowieka podstawą konstytucyjnego katalogu praw i wolności jednostki [Human Dignity as a Basis for the Constitutional Catalogue of Individual Rights and Freedoms, in Podstawowe prawa jednostki i ich sądowa ochrona [Basic Rights of the Individual and Their Judicial Protection], ed. L. Wiśniewski, Warsaw 1997, pp. 48–50.

^[11] L. Garlicki suggests that dignity should be interpreted against the background of the axiological foundations of the understanding of human rights in a democratic society, so that the wording of Article 30 of the Constitution of the Republic of Poland can be treated as reference to the content of this idea, in a form that is binding in our civilisational circle. Only a broad historical, philosophical, legal, and sociological perspective of the concept of human dignity and human rights allows us to read the normative meaning of this constitutional principle. L. Garlicki, Polskie prawo konstytucyjne. Zarys wykładu, [Polish Constitutional Law. An Outline of a Lecture], Warsaw 2012, pp. 89–93.

^[12] In the last paragraph of the preamble to the Constitution of the Republic of Poland, the constitution-maker calls for all those who will apply the Constitution to consider the preservation of the inherent dignity of the human being as ‘an unshakable foundation of the Republic of Poland’.

^[13] Cf. J. Krukowski, Godność człowieka… [The Dignity of Man...], p. 137.

^[14] L. Garlicki, Artykuł 30 [Komentarz] [Article 30 [Commentary]], [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz III, [Constitution of the Republic of Poland. Commentary III], ed. L. Garlicki, Warsaw 2003, p. 17.

^[15] Cf. B. Banaszak, Zagadnienia podstawowe. Terminologia, [Basic Issues. Terminology], [in:] B. Banaszak, A. Bisztyga, K. Complak, M. Jabłoński, R. Wieruszewski, K. Wójtowicz, System ochrony praw człowieka [Human rights protection system], Zakamycze 2003, p. 14.

^[16] Cf. B. Banaszak, J. Boć, M. Jabłoński, Art. 30 [Komentarz, VI], [Art. 30 [Commentary, VI]], [in:] Konstytucje Rzeczypospolitej oraz komentarz do Konstytucji RP z 1997 roku [Constitutions of the Republic of Poland and Commentary on the Constitution of the Republic of Poland of 1997], ed. J. Boć, Wrocław 1998, pp. 67–68.

^[17] B. Banaszak, J. Boć, M. Jabłoński, Art. 30..., p. 68.

^[18] Cf. F. J. Mazurek, Godność osoby…, [The Dignity of the Person...], p. 188.

^[19] Ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży [The Act of 7 January 1993 on Family Planning, Protection of the Human Foetus and Conditions for the Admissibility of Termination of Pregnancy], Dz.U. Journal of Laws No. 17, item 78, as amended

^[20] Cf. J. Boć, M. Jabłoński, Art. 30 [Komentarz, I–IV], [Art. 30 [Commentary, I–IV]], [in:] Konstytucje Rzeczypospolitej oraz komentarz do Konstytucji RP z 1997 roku, [Constitutions of the Republic of Poland and Commentary on the Constitution of the Republic of Poland of 1997], ed. J. Boć, Wrocław 1998, p. 68.

^[21] Cf. B. Banaszak, Prawo konstytucyjne [Constitutional Law], Warsaw 2012, pp. 380–381.

^[22] Judgment of the Constitutional Tribunal of 4 April 2001, file no. K 11/00, OTK ZU no. 3/2001, item 54.

^[23] It follows from the judgment of the Constitutional Tribunal of 4 April 2001 that the prerequisite for respect for human dignity is, m.in, ‘the existence of a certain material minimum, ensuring the possibility of independent functioning in society for an individual and creating opportunities for the full development of personality in the surrounding cultural and civilisational environment’. Judgment of the Constitutional Tribunal, ref. no. K 11/00.

^[24] L. Garlicki, Artykuł 30… [Article 30...], pp. 17–18.

^[25] Cf. M. Jabłoński, Rozważania na temat znaczenia pojęcia godności człowieka w polskim porządku konstytucyjnym [Considerations on the Meaning of the Concept of Human Dignity in the Polish Constitutional Order], [in:] Prawa i wolności obywatelskie w Konstytucji RP [Civil Rights and Freedoms in the Constitution of the Republic of Poland], ed. B. Banaszak and A. Preisner, Warsaw 2002, p. 94.

^[26] Cf. L. Garlicki, Article 30..., p. 18.

^[27] A. Zieliński believes that measures to protect dignity should depend on the situation in which an individual is. Therefore, the type of measures aimed at ensuring an adequate standard of living depends on many circumstances, such as, for example, the age and health condition of a person, family conditions etc. Cf. A. Zieliński, Pojmowanie godności ludzkiej w świetle praw ekonomicznych i socjalnych [The Understanding of Human Dignity in the Light of Economic and Social Rights], [in:] Godność człowieka a prawa ekonomiczne i socjalne. Księga jubileuszowa wydana w piętnastą rocznicę ustanowienia Rzecznika Praw Obywatelskich [Human Dignity and Economic and Social Rights. Jubilee Book Published on the Fifteenth Anniversary of the Establishment of the Commissioner for Human Rights], Warsaw 2003, p. 53.