LCM Journal. Vol 5, No 1 (2018). Research Perspectives on Bioethically-relevant Discourse

AA. VV., Kim Grego, Priscilla Heynderickx

• Editore: LED Edizioni Universitarie
• Anno: 2019
• ISBN:
  9788879169035
• Argomento: Philosophy
• Categoria: Language in Philosophy

Table of Contents: Research Themes in Bioethically-relevant Discourse: An Overview
Kim Grego, Priscilla C. Heynderickx Scientific Knowledge and Legislative Drafting: Focus on Surrogacy Laws
Giuliana Elena Garzone "The diet is not suitable for all...": On the British and Irish web-based discourse on the Ketogenic Diet
Davide Mazzi Genetic Bragging as a Speech Act: From Fictional to Non-fictional Discourse
Sergio Pizziconi, Walter Giordano, Laura Di Ferrante Stem Cells and (Pseudo)Science: Discursive Aspects of the Stamina Case as Seen in Nature
Alessandra Vicentini The Construction of Physician-patient Trust. A Case Report of an Oncologist's Consults in Palliative Care
Sylvain Maria Dieltjens, Priscilla C. Heynderickx Ethical Aspects in Web Marketing for Seniors: A Grid for Linguistic Analysis
Kim Grego

Scientific Knowledge and Legislative Drafting: Focus on Surrogacy Laws^*

Giuliana Elena Garzone

DOI: http://dx.doi.org/10.7358/lcm-2018-001-garz

ABSTRACT

This article discusses how sensitive bioethical issues are addressed in legislation, using as a starting point the analysis of a corpus of normative texts relating to Assisted Reproduction Technologies (ARTs), and in particular surrogacy, enacted in various English-speaking countries. In the investigation, special special attention is given to the re-elaboration and presentation of scientific knowledge in legal discourse with a view to detecting any possible slant or changes, and the reasons thereof. Another important object of investigation is the redefinition of certain well established categories of kinship because of the disruptive effects of biomediacal advances, and ARTs in particular, on family-based social relations. The analysis will focus on legal definitions, which are crucial in this domain considering that advances in the modern technosciences have brought about the need to categorize and name new medical practices and the situations they contribute to bringing about. The focus will be on how definitions are used in normative texts, functioning as initiators of a dynamic process generating discourses that acquire their meaning in the social and communicative contexts they are embedded in. Special attention will be devoted to the way in which specialised scientific, and especially medical, terminology and concepts, are dealt with in bioethically relevant legal discourse.

Keywords: Artificial Reproduction Technologies; bioethics; definitions; legislative drafting; surrogacy.

1.INTRODUCTION

In the last few decades technoscientific research has gathered momentum and broken out of the laboratory into our lives, with important implications in some areas (health, genetics, reproduction, end of life, etc.), often introducing an element of choice in facts that were previously ineluctable (death, the sexual basis of reproduction, congenital malformations, etc.), and in many cases also having an impact on the environment. So the need has arisen to introduce some form of social control: it seems no longer possible for science to stand apart and let scientific research proceed in the free pursuit of knowledge and its applications in full autonomy and independently of the social context where it is embedded. In this respect the law has a most crucial role to play as the instrument through which social control can be exerted, establishing rules, i.e. limitations, if not outright prohibitions, for activities in the biomedical and life sciences and in individuals’ behaviour (cf. Mazzoni 2002, 7).

In the past there was little confidence that the law would be a valid instrument to regulate bioethical questions, because of the sheer speed of technological and biomedical progress, and the difficulty unifying largely divergent moral and religious conceptions (Tallacchini 2002, 79). Some people also thought that for many of the issues involved the choice could be left to the single individual, rather than determined by the institutions. But the problems deriving from a lack of rules in the bioethical field were so serious that law-making seemed to be the only possible solution, apart from the contingent (and unsystematic) solutions provided by judgments issued in court cases where disputes often ended up because of lack of clear rules.

Of course, the pace at which the biomedical sciences have progressed has put legal systems under strain to come to terms with progress and regulate the new situations and options. The legislative work done in each community for this purpose has important ideological consequences, as not only does it determine what is prescribed or prohibited, but it also entails the designation and definition of the entities and objects involved. This means it plays a crucial role in the categorization of such entities and objects, and in the establishment of connections amongst them. Knowledge thus categorized is then disseminated through the circulation of the contents of legislative instruments and their application in civil life, and becomes widely accepted in society, thus offering schemes for the social construction of reality.

This study is aimed at discussing how sensitive bioethical issues, and in particular those connected sith surrogacy, are addressed in relevant legislation in English, giving special attention to definition rules (Gunnarsson 1984) on account of their importance for the sake of the conceptualisation of scientific/bioethical knowledge.

2.BACKGROUND: SURROGACY AND THE LAW

Among bioethical issues, those regarding Assisted Reproduction Technologies (ARTs) are especially topical.

Various forms of IVF (In Vitro Fertilisation), gamete intrafallopian transfer (GIFT), homologous and heterologous insemination, cloning, have often been objects of debate both on an institutional level and among the general public. In particular, since surrogacy was introduced in the 1980s¹, in many countries the issue of its admissibility has been especially controversial, well beyond a general reluctance towards techniques that tamper with the mechanisms of human reproduction.

For surrogacy, the sources of concern are manifold. Surrogacy, especially in its gestational form, i.e when the surrogate mother has no genetic connection with the baby², may lead to complex genetic and biological situations in terms of maternity/paternity recognition, which in some cases even DNA testing cannot sort out (as was the case for instance in the famous baby M case, or the Johnson v. Calvert, 1993 case, or Jaycee v. Supreme Court of Orange County, 1996; cf. Post 2004, 2291-2292)³ and this often leads to court battles.

How controversial the practice of surrogacy continues to be is proved by the fact that in various jurisdictions where commercial surrogacy was allowed until recently (e.g. India, Thailand, Tabasco), more restrictive laws have now been introduced to prevent non-nationals from having access to it. The resulting picture is one where in an increasing number of countries the practice of commercial surrogacy is either forbidden by law or subject to heavy restrictions. More in general, while certain sectors of public opinion (e.g. LGBT communities) strongly advocate its legalization, surrogacy has come under serious scrutiny in various quarters, e.g. feminist groups, who after initially seeing surrogacy as an expression of women’s control of their own bodies now denounce it as a form of exploitation and commodification orchestrated by the human reproduction industry. A case in point is the Charter for the Abolition of Surrogate Motherhood (http://www.abolition-gpa.org/charte/english/ [24/08/2017]) launched in 2016 by a composite group of feminist associations and subsequently promoted globally through a series of conferences. Noteworthy are also stances taken by institutions, such as the European Parliament (cf. condemnation included in the 2014 Report on Human Rights)⁴, and the Council of Europe’s Social Affairs and Health Committee’s rejection of the draft report on surrogacy (‘de Sutter report’) containing a proposal that called for measures which would have required states to give effect to private surrogacy arrangements (11/10/2017).

At the same time in ever more jurisdictions increasing tolerance is shown, for instance when actual cases end up in court in countries that ban surrogacy, and the judges recognise the baby born abroad from surrogacy as the legitimate offspring of the commissioning couple on the basis of the principle of the best interest of the child. In other countries measures have been passed to legalize altruistic or collaborative surrogacy, also for the purpose of avoiding mispractices and abuses.

A further source of concern is that where commercial surrogacy is actually practiced, being allowed or tolerated, it is often seen to take the form of a real business, being mostly carried out within the framework of organizations or ‘centres’ that provide services (the surrogate motherhood) and goods (the babies) in addition to a whole range of supplementary goods and services (ova, sperm, embryos, in vitro fertilization services, etc.), which are specialised in assisting aspiring parents through the whole surrogacy cycle, and offer medical and legal counselling, reproductive technologies, concierge services for pregnant surrogate mothers, etc.

But, whatever one’s opinion on the admissibility and/or lawfulness of surrogacy, it cannot be ignored that this practice is part of the unprecedented advances made in the biomedical and genetic sphere that have had an impact on our conceptualisation of the possible interferences in the natural functioning of the body: ARTs, genetic therapies, organ transplant and end of life care are only few examples. These advances have revolutionized our conceptualisation of the body as a non sectionable organism, with a number of consequences, among them the confidence in the possibility of tampering with various body parts and replacing them without interfering with the overall functioning of the organism. This may even give rise to a conceptualisation of body parts as spare parts that can be exchanged, removed, and sold, patently against the principle of non-commercialization of human organs as enshrined in professional statements, such as the Declaration of Istanbul (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2813140/) (2008), and international legal instruments, such as the Council of Europe Convention against Organ Trafficking (2014).

It is inevitable that such important developments should bring about profound changes in mentality, altering communities’ ethical convictions as well as their conceptualisations of some of the basic aspects of human life. In particular, as regards surrogacy, the acceptance of the practice and all the corollaries it brings with it entails a radical re-haul of current conceptions of the fundamental facts of life based on strictly biological laws in their ‘natural’ course. This is of course especially true for surrogacy, where the new options and their consequences diverge from biologically-based and socially-sanctioned kinship relations.

3.AIMS, MATERIALS AND METHOD

This study looks at surrogacy laws in force in some English-speaking countries and aims at understanding how practices and situations made possible by advances in the modern biomedical sciences are categorized and named within legislative texts. The focus is on definitions, which are crucial in this respect, functioning as initiators of a dynamic process generating discourses that acquire their meaning in the social and communicative contexts they are embedded in. Special attention is devoted to the way in which specialised scientific, and especially medical, terminology and concepts, are dealt with in bioethically relevant legal discourse.

The study has its starting point in the analysis of a corpus of surrogacy laws in force in English speaking countries. As regards corpus collection, it has to be considered that normative texts in English regulating the issue are not numerous, as only some states have actually introduced legislation to control or prohibit surrogacy, either totally or partially, while in other countries the practice is not subject to any control or tolerated, or it is left to the judges to decide on its lawfulness in contingent cases they are required to deliberate on. Therefore, the choice of texts for the corpus was rather limited, and includes statutes in force in the UK, Canada, South Africa, Hong Kong, the United States and Australia. Given that in the USA and in Australia, each state (or territory) has a different surrogacy or ART law, in order to prevent an excessive weight of American and Australian texts in the corpus only a selection has been included, taking care that the statutes selected are characterised by different stances towards the issue. The resulting corpus comprises the laws in force in the UK, Canada, South Africa, Hong Kong, seven statutes in force in US States (California, Florida, Illinois, Lousiana, Michigan, Virginia, Washington), and three statutes from Australian States (New South Wales, Victoria, West Australia). The corpus consists of 65,396 tokens, standardised TTR 24.29 (cf. McEnery and Hardie 2011, 50), and has been analysed mainly qualitatively, devoting special attention to the words or expressions explicitly defined in the legislative texts. Although quantitative data are seldom mentioned in the text, in the research process recourse was also made to corpus linguistics (cf. McEnery and Wilson 2001, 78-79), using the Wordsmith Tools 6.0 suite of software programmes (Scott 2012) to generate frequency lists for the purpose of identifying the presence and ‘weight’ of the various lexical items and providing an empirical basis for interpretation, and to run concordances to help identify the contexts of usage, collocates and discourse prosody (Sinclair 1991; Stubbs 2001; Baker and McEnery 2015).

The basic methodological framework of this study is discourse analysis (cf. e.g. Brown and Yule 1983; Schiffrin, Tannen, and Hamilton 2001), and in particular Critical Discourse Analysis (e.g. van Dijk 1993; Fairclough 1995, 2014; Wodak and Meyer 2001). Special attention has been devoted to the inevitable ideological implications in discourses dealing with such fundamenta...

Indice dei contenuti

• Cover
• Title
• EDITORIAL: Research Themes in Bioethically-relevant Discourse: An Overview
• Scientific Knowledge and Legislative Drafting: Focus on Surrogacy Laws
• “The diet is not suitable for all…”: On the British and Irish Web-based Discourse on the Ketogenic Diet
• Genetic Bragging as a Speech Act: From Fictional to Non-fictional Discourse
• Stem Cells and (Pseudo)Science: Discursive Aspects of the Stamina Case as Seen in Nature
• The Construction of Physician-patient Trust: A Case Report of an Oncologist’s Consults in Palliative Care
• Ethical Aspects in Web Marketing for Seniors: A Grid for Linguistic Analysis
• Autori / Authors