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Xenogeneic infection risk: limits to individual right restrictions
Author(s) -
González J. G.
Publication year - 2011
Publication title -
xenotransplantation
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 1.052
H-Index - 61
eISSN - 1399-3089
pISSN - 0908-665X
DOI - 10.1111/j.1399-3089.2010.00607_9.x
Subject(s) - proportionality (law) , legislation , law and economics , law , order (exchange) , political science , risk analysis (engineering) , business , economics , finance
One day even clinical organ xenotransplantation (XTx) will be a reality; this will mean assuming an uncertain infection risk for patients, their close contacts and society in general. Legislation will have to consider and cope with this xenogeneic infection risk (XIR) as well as reduce it as much as possible. It has to be determined, when, if, how and which legal instruments may be used to prevent XIR. The chief focus here will concern individual rights restrictions. The utility of this analysis is double: to have a legal basis ready when XTxs are deemed prepared for the first clinical experiments; and to offer new arguments to the discussion of if XTx should be authorized—on the basis of what would be currently legally possible, or if the law would have to be changed instead. The view of current European law (especially EU, Spanish, German and English Law) facing these—to date—hypothetical problems will be considered. The well‐established legal institutions of proportionality and reasonableness will provide the foundations for the legal analysis. They will answer the questions of whether and how law should or must act as well as which individual rights can be constrained in a concrete situation, and consider time or rather risk (from the XTx until the appearance of a XZn or beyond) as an independent variable. Individual risk reduction would imply that at least XTx recipients would have to observe certain measures in order to prevent xenogeneic transmissions. Either these patients may oblige themselves with a private law instrument to do so; or they can be obliged to with a public law instrument, as it is always allowed to constrain individual rights if higher public interests are threatened. According to the legal systems analysed, the XIR must be a real or direct menace if individual rights are to be significantly constrained. Hence any use of the precautionary principle cannot be a firm legal basis for such individual rights restrictions. Factual and theoretical legal aspects limit the present and traditional law as an instrument to prevent XIR. Due to the essential value of fundamental rights, law can only react when a real XIR directly threatens society. And even in this case it is doubtful if legal repression is the best way to face infectious diseases with regard to human beings.