Pratiques de la recherche biomédicale et pratiques thérapeutiques : À qui appartient le corps humain ?

Abstract

Who owns the human body? This issue has been formerly raised about the status of the slave. Today, it has become a prominent stake for when reflecting on biomedical research and healthcare practices. In our cultures, many answers may be given to this question : they are derived from philosophical or theological traditions ; they are borrowed from anthropological, sociological or psychological knowledge ; they may be formulated in a moral or political perspective. All of them give different insights and reveal one of the various dimensions of the question. When examining the status of the body and its relation to the human subject in the various stages of his/her life (including his/her death), one of the main difficulties is to deal with each of these answers and to understand how they meet and interact in the public debate. Another matter is related to the fact that law also plays a crucial role in the process of giving an answer to this question. In our book, A qui appartient le corps humain ? Médecine, politique et droit (Paris, Belles Lettres, 2004), Claire Crignon-De Oliveira and I have tried to deal with both difficulties. In this article, I focus on the meaning of the various law traditions. In western world, the laws are all derived, up to a certain extent, from the Roman tradition. Whether they have chosen to consider the human body as a property or to associate the body to the person, they have taken very different options. However, an examination of the ways laws are elaborated on this topic shows that these two conceptions can meet in unexpected manners and that lawmaking can give creative answers to both the problem of protecting the person and to the requirements of biomedical research and healthcare practices.