pp. 56-58 in
Bioethics in Asia
Editors: Norio Fujiki and Darryl R. J. Macer, Ph.D.
Eubios Ethics Institute
Copyright 2000, Eubios Ethics Institute
All commercial rights reserved. This publication may be reproduced for limited educational or academic use, however please enquire with the author.
1.7. The Law of "Life Units" as a New Legal Order
Meijo University, Japan
It is more and more common today to observe the diversification of academic fields by specialization. Law is not an exception. For example, the field of the Civil Code, which includes the laws of personality, ownership rights, secured transactions, obligations, contracts, torts, unjust enrichment, family and succession, has become extremely difficult to comprehend at all due to the increased amount of specialized information. Additionally, new legal issues, such as environmental protection, malpractice, consumer protection, new financial products, and international transactions, cannot be solved if they are treated as isolated from other related issues in the traditional law of the Civil Code.
More controversial issues, such as global environmental protection, biotechnology, brain death, and organ transplants, which are closely connected with the fundamental values and premises of our modern society and human beings, also shake the very foundation of the modern legal system. In light of the complexity of these new legal issues, a joint and interdisciplinary study among law and the other related specialized fields is necessary.
Modern Law and Technology
Our current legal systems developed in Europe during the eighteenth and nineteenth centuries. These systems resulted from the capital market economy, together with the ideologies such as individualism and liberalism, unified state power and modern bureaucracy as its foundations. In this sense, the modern law is a product of history.
Modern law has changed into contemporary law through various modifications which have occurred during the process of the two major world wars and which continue up until the present. Although new legal doctrines were introduced during this process, they did not change the fundamental structure of the modern law. Rather, it seems to me that the modern law has been managing to survive by absorbing these amendments and modifications. Thus, the contemporary legal systems seem to have a dual character consisting of the elements of the original modern law and its amendments.
At the same time, high technology has opened up a new door to this kind of modern structured law. Namely, technological innovations require a re-examination of the fundamental legal concepts of man and nature which have formed the premises of the modern law up until now.
This paper intends to examine the following two issues of whether and how technology has an impact upon the contemporary legal systems. Firstly, this paper examines how the fundamental scientific impacts of DNA (deoxyribonucleic acid) affect our contemporary legal systems. Secondly, a new method for evaluating these new impacts will be proposed. The simple legal approach is ineffective in evaluating the issues themselves. The impacts of innovative biotechnologies upon law cannot appropriately be understood without resorting to comprehensive studies which include these biotechnologies and related specialized fields. This paper intends to construct the theory of a legal model and to speculate on the new term "life unit" as such a legal model.
The Person and Nature as Components of the Modern Law
Unlike technology, the modern legal systems differ from country to country. Their fundamental premises, however, are common to each other. The dichotomy between "persons" who appear in law as the subject of subjective rights on one hand, and "things" which are the object of subjective rights on the other, is one of such premises.
Under the modern law, persons are treated equally as legal personalities, each possessing the capacity to hold rights. The modern law regards the person's intention and activities as the most significant element of law. Contracts and wills are built based upon such a presupposition. Things exist in nature and are located on the other side of persons. Land, resources, animals and plants are all conceived of as things which, as the object of a subjective right, may be owned by a person. Attention should be paid to the legal ramification of the conception that animals and plants are viewed as "things" in law. All creatures except humans are categorized as "things." This dichotomy is an unbridgeable one under the modern law.
Legal Impacts of Biotechnology and the New Concept of the "Life Unit."
The presupposition discussed above, which is taken as a self-evident premise, exaggeratedly speaking, collapsed with the emergence of molecular biology. Microbiology has taught us that at the DNA level there are no distinctions between humans, animals and plants. It has been proven that, because structures and functions of hereditary substances within DNA are common to all creatures, the phenomenon of life in the human being is reducible to the DNA hereditary information which is common to animals and plants, namely, the material world.
The phenomenon of life means the self-multiplication with DNA hereditary information and this is common to humans, animals and plants. Molecular biology thus implies that at the micro level of DNA no differentiation between humans as a subject of rights and things as an object of rights would be made.
It is understandable that legal professionals still maintain the traditional dichotomy between humans and other creatures. Admitting that there is no differentiation between humans and other creatures, it is true only at the DNA level and in molecular biology. In reality, humans are still considered as the subject of "mind" and "intention," and thus different from animals and plants. Consequently, they would say that the legal dichotomy between persons and things, which also includes animals and plants, will continue to exist in the future.
I do not intend in this paper to set aside this traditional dichotomy. This paper asks whether or not the serious issues arising from molecular biology and biotechnology have anything to do with the law other than with respect to specific issues such as the patentability of DNA information or safety regulations on recombinant DNA experiments. Until recently, no lawyers have ever imagined that sperm banks, surrogate mothers, the "rightholder" issues of frozen fertilized human eggs, or the cloning of animals and even humans, are issues in the field of law. Even today, this remains so for many lawyers. Are these questions not suggesting the necessity for us to establish a new legal framework which has never existed before? The development of molecular biology and biotechnology already indicate that such issues would not be solved by specific "catch-up" legal measures. In my view, the time has come for us to try to introduce a new legal system to deal with these issues arising at the micro level of DNA. Even under the current law, it is unlikely that one could interpret that a person's DNA or genes can, like a person, be a subject of a right. The same would hold true of the interpretation that the gene recombination technology targets DNA and genes as "things" which are therefore different from "persons." Any one who tries to resolve this issue will confront a huge wall of unprecedented difficulties. There must be, in addition to biomedical ethics, a new domain of law that should not be left undeveloped. This new domain definitely requires new legal concepts which are capable of dealing with these legal issues arising at the micro level of molecular biology and biotechnology.
My point here is to introduce a new concept called a "life unit" which is, in the world of microorganisms, the fundamental element of the third legal order and which is an addition to the existing legal dichotomy of "persons" and "things." The exact delineation of the "life unit" can only be made possible with an interdisciplinary collaboration among the relevant professional fields. The "life unit" is not a word representing DNA itself, nor is it a word that can be used to solve the classic and contemporary problem of what is life. It is a legal model to deal with the problems arising at the level of microorganisms in the field of molecular biology and biotechnology. Upon successful building of the "life unit" concept, it becomes feasible for us to begin constructing the new legal system of the "life unit."
The Legal System of the "Life Unit"
We once experienced a baby's birth with pious feelings in an intensely joyful atmosphere and experienced death in a sad and solemn atmosphere. This is intimately connected with the modern legal system which constructs the legal order concerning persons on the premise that birth, the starting point of a personality on the one hand, and death, the end of a personality on the other, can be clearly decided. Even now, this system is maintained in the field of law. Accordingly, a person acquires a legal personality (e.g., capacity to enjoy rights) at birth. The one exception is that an embryo, is regarded as already born under the law of torts and the law of succession (e.g., Japan's Civil Code Articles 721 and 886). The commonly held view is that this legal fiction of life, with respect to embryos, does not apply retrospectively to the time of fertilization. Consequently, this legal fiction cannot be applied to a fertilized human egg. While by the death of a person the person's personality disappears, a person also loses the capacity to enjoy being the subject of rights, and property owned during life is succeeded to by successors. In the current legal system, the birth and death of a person are presupposed as self-evident.
This self-evident presupposition has been drastically undermined. The clear-cut idea of life and death under contemporary modern law is seriously affected by new biomedical issues, such as external fertilization, frozen fertilized eggs, adopted children conceived with a third party's ovum or spermatozoid, genetic diagnosis, organ transplants and brain death, etc. The view of life and death which the modern law presupposes is the product of an era when medical science and biology were not so highly developed as they are today. It is undeniable that the definition of a person's birth and death under the modern law is becoming ambiguous.
If birth is possible by using a frozen fertilized egg, and if a couple asks a third person or organization to "give birth" to their frozen fertilized egg after the lapse of a certain period through the couple's joint will, what should be the legal consequence of such will? How is this frozen egg treated under the current law? If not a person, can we deal with it as a "thing" which is a part of the estate left, and which can be contracted for, or can be freely abandoned as a thing? Under the proposed legal system of the "life unit," such an issue is treated on a different level from that of "persons" and "things" under the modern legal system. The concept of the "life unit" will allow for such problems as fertilized eggs, genetic diagnosis, organ transplants, etc., to be legally systematized so that clues can be provided for the construction of a new legal order at the level of microorganisms.
In this new legal order, a "life unit" will not be recognized as a new subject of a right, nor as a new thing. This legal order for the "life unit" and its constituents may require a complexity of new legal norms which are substantially unfamiliar to us. While finding them, a careful examination should be conducted in respect of the interrelationships of the new concept of "life units" and actual issues observed. I believe it will not be long before we begin contemplating legal issues such as the definition of the "life unit," the method of handling its legal characteristics, its legal nature (to whom a "life unit" belongs), the possibility of and, if possible, the types of transactions concerning "life units", the safety issues of "life units," and the intellectual property rights in "life units."
The author thanks Mr.Andrew Thornson who carefully checked and corrected the English version.
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