The Right to Bodily Integrity

A.M. Viens

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351882828
• Edition: 1
• Topic: Medicine
• Subtopic: Health Policy

The right to bodily integrity has become a notable controversial issue within moral, political and legal discourse and this right is regarded as one of the most precious rights that persons have, alongside the right to life. Recent scholarly debate has focused attention on the content, scope and force of this right and has lead to the recognition that a better understanding of the nature of this right will contribute to determining whether and why a multitude of clinical and research activities in medical practice should be seen as permissible or impermissible. The essays selected for this volume examine topics such as pregnancy and reproduction, altering children's bodies, transplantation, controversial modifications and surgeries, and experimentation and dead bodies. This is the first collection of scholarly research articles to provide a comprehensive overview of the ethical and legal aspects of the right to bodily integrity and its implications in theory and practice.

Part I
Bodies, Rights and Integrity

[1]

Bodily and Moral Integrity Rights

Jill Marshall

Introduction

Integrity is defined as “the quality of being honest, fair and good.”⁶⁴² It is with this definition that Ronald Dworkin is concerned in his judicial interpretation.⁶⁴³ Integrity is also defined as “the state of being whole or unified” and as “soundness of construction”.⁶⁴⁴ Bodily integrity has recently been explained as bound up with a claim to exclude others from one’s physical space.⁶⁴⁵ This links to ideas of human dignity which I explored in chapter two in the context of human rights protection of human dignity. It has been argued that each person’s psychic and moral space in which each individual is allowed to evaluate and represent who they are ought to be a legally protected right.⁶⁴⁶ In Drucilla Cornell’s theory, law can ensure that everyone has an equivalent chance at the struggle to transform her or himself into a person. In order to ensure that chance, three conditions need to be fulfilled: the protection of bodily integrity, access to symbolic forms, and the protection of the ‘imaginary domain’. Cornell describes the imaginary domain as the space for “re-imagining who one is and who one seeks to become.”⁶⁴⁷ This concept overlaps with the sense of the self as a unified whole or as in some sense striving or aspiring towards such a goal, if not psychologically then legally, in terms of legal recognition of their being and existence, and of non-intrusion into their body and their psychological constitution and moral framework.

In 1994, Celina Romany condemned:

a human rights framework that construes the civil and political rights of individuals as belonging to public life while neglecting to protect the infringements of those rights in the private sphere... Such a framework is criticised for not making the state accountable even for those violations that are the result of a systematic failure on the part of the state to institute the political and legal measures necessary to ensure the basic rights of life, integrity, and dignity of women.⁶⁴⁸

This situation has changed, at least in terms of the ECtHR’s interpretation of Article 8 as providing a right to autonomy, identity and integrity and with the development of positive obligations on the state for the actions of private individuals. This chapter is concerned with the development of a right to integrity under the Court’s interpretation of Article 8. However, physical or bodily integrity is arguably protected under Article 3⁶⁴⁹ and has increasingly been utilised in the sphere of private, as well as public, violations, violence and abuse, including gender-based violence.⁶⁵⁰ The interpretation of a right to integrity has been treated as requiring states to avoid causing or allowing seriously adverse effects on a person’s physical and moral or psychological integrity. It has been argued that human rights law ought to secure human agency, as this is the most basic form of protection needed for one to live a life.⁶⁵¹ Unwanted intrusions are instigated and acted upon by the government and state as well as by private individuals and aspects of all of these are analysed in this chapter. It will be shown how certain invasions of one’s body and psychological well-being are now clearly seen as violations of Article 8, and indeed may constitute the degree of severity necessary to breach Article 3. The case law is varied and covers topics such as unwanted disclosure of medical information and unwanted medical interventions; physical abuse such as rape and sexual assault both by government officials and by private actors; treatment of the disabled, including issues relating to euthanasia; sustaining individuals’ mental health, abortion and giving birth. The case law clearly shows protection against unwanted interferences to a person’s bodily or physical integrity and also a person’s moral or psychological integrity. It has been asked if an integrity right is a right to privacy and it has been argued that this encapsulates the protection of the nature of others’ modification of expression.⁶⁵² In this connection, such an integrity right has been discussed as expressive autonomy with recognition of the integrity right reflecting the rise in individual rights of expression and “aesthetic-philosophical currents supporting the notion of creative, expressive individualism.”⁶⁵³ The way this right has developed gives real strength to arguments of personal freedom as self-determination and includes elements of leaving people alone as well as helping and supporting them to live the lives of their own choosing.

Of course, there is overlap here with the other themes developed in this book. To a large extent, many of the violations analysed in this chapter could be covered by a right to privacy, and a negative freedom. In 1997 David Feldman predicted that Article 8 case law was likely to be influenced by three factors, one of which is the way in which the Court gives substance to the novel and under-theorised notion of moral integrity.⁶⁵⁴ He states that if moral integrity consists of trying to live one’s life in accordance with one’s ethical standards, the state might fail to respect private life either by significantly limiting the range of choices which one could hope to implement in accordance with one’s moral precepts, or by failing to guarantee freedom from the fear that one is subject to pervasive surveillance. As he puts it “[m]oral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people’s moral worth by taking account of their need for security.” A further extension could compel the state to give practical assistance to those who lack the physical or perhaps financial capacity to give effect to their moral choices. This would thus impose positive obligations on states to provide social and economic rights.⁶⁵⁵ Feldman has also described personal integrity as a collective description of a rather diffuse set of interests concerned with people’s abilities to carry on their lives in an autonomous and dignified way.⁶⁵⁶ Talking of Article 8 in 1999, Feldman notes that the court had not defined moral integrity, but it seems to be related both to dignity and to freedom from coercion in respect of choice concerning one’s decisions and life-style. As such, the case law in this chapter relates back to identity rights and to autonomous choices about one’s way of life. It particularly highlights that decisions concerning an individual’s mental well-being ought not to be taken away from him or her. This case law, in the main, is interpreted as securing protection to a sphere which is that individual’s own. Even when socially formed and needing protection in public as well as private places, priority is given to individual wishes and desires confirming in many ways a self-determining version of personal freedom. Yet, again, there are glimmers of a self-realising version when it comes to decisions which the court could be construed as considering undesirable, for example, euthanasia.

Unwanted Intrusions

The non-disclosure of confidential information deeply affects many people’s moral or psychological integrity. In this sense, the person concerned wishes to keep information about him or herself private and out of public view. They want it to be a decision for them whether or not to share such information, retaining control of it. It can often be of a nature that concerns an intimate aspect of their personality or it could be simply that the person does not want it to be known to others or wishes to select others to so share it with. This provides a sense of control and choice which is discussed in more detail in chapter four and relates to informational autonomy.⁶⁵⁷ Often the information is of a medical nature and there are usually strict rules and guidelines as to medical notes and records’ confidentiality. For example, the British Medical Research Council’s Guidance on confidentiality states:

Respect for private life is a human right, and the ability to discuss information in confidence with others is rightly valued. Keeping control over facts about one’s self can have an important role in a person’s sense of security, freedom of action, and self-respect. (Personal Information in Medical Research)⁶⁵⁸

It has been noted that in the number of cases in which patients have relied upon Article 8 when complaining about the disclosure of medical information, it has not proved especially difficult for them to establish that any disclosure of their medical records constitutes a prima facie violation of Article 8.⁶⁵⁹ The principal obstacle to a successful claim is Article 8(2).

In Z v Finland,⁶⁶⁰ the applicant Z was married to X who had been charged with a number of sexual offences. X was HIV positive and in order to find out when he became aware of his HIV status, the police sought and gained acc...