човешкото тяло като предмет на вещни права / Human Body As An Object Of Real Rights
E-Book Overview
RESUME The legislations of different countries grant different rights in favour of every person as regards their body. Among these rights are: the right to personal inviolability, the right to bodily freedom, the right to control, the right to patent, the right to make decisions, the right to personal use and the right to own property. This treatment focuses on the real law aspects of the legislative approach to the human body – during its lifetime and after the death has come, as well as to the organs, tissues and cells extracted from it. The approach used when treating them combines carrying out of a comparatively legal analysis of the permissions, adopted or proposed by the foreign experience (mostly in the USA and in the UK), by reviewing the specific relevant regulations in the operative Bulgarian legislation. An attempt to deduce and generalize the approach of the legislator to the human body has been made, in order to formulate a principle applicable to the cases unsettled by the law. With a view to clarifying the real right statute of the human body, the complete content of the human power over their body, granted them by the Bulgarian legislator in normative acts different in subject and degree, has been treated. This power includes: - the right to physical control over the body, finding expression in freedom of moving of the body in space; - the right to taking risk regarding the human body by taking part in activities, posing a threat to the bodily integrity of the individual, including practicing extreme sports dangerous to the human health (climbing, boxing, sports cycling etc.), or by allowing a certain impact from other person (in case of risky medication, transplantation etc.); - the right to self-injuring, including the right to suicide, the right to passive euthanasia, the right to abortion and the right to injury of the human body, including the right to explantation of an organ with the purpose of its transplantation into the body of a person near of kin or emotionally close to the donor (the Bulgarian legislation limits the right of donorship only in favour of certain persons near of kin or emotionally related to the donor and if there is not a danger to the donor’s life) - the right to sexual identity, including the right to free choice of sexual pleasures and the right to self-injuring with the purpose of changing the sex by having certain impacts (removing or changing of certain organs) on the human body; - the right to self-sacrifice, self-injuring with the purpose of preserving the health of another person, including in itself the right to death with a view of providing organs, tissues and cells for donorship; - the right to treatment choice, including the chance to refuse medical treatment and the right to use unconventional means of treatment (folk medicine, homeopathy etc.); - the right to “self-improving”, including the ability to transplant implants, ability to perform plastic operations and the ability to use the achievements of the eugenics; - the right to create a generation, including the ability for assisted reproduction, as well as the right to use contraceptives, as well as prohibition on posthumous conceiving if there is not a will expressed explicitly by both parents before they die; - the right to express disagreement over performing posthumous donorship, whose exercising excludes the possibility to use the body and the organs, tissues and cells containing in it after the death of a person in order to satisfy other goals, other than those related to organization of their funeral. This right can be described as the right to physical (bodily) sovereignty. Its recognition and guaranteeing is a main prerequisite for exercising a great number of basic human rights, such as the right to life, the right to bodily inviolability, the right to personal freedom, the right of free moving i