Human reasoning and legal analysis -- Paradigms and the process of legal analysis -- Logic, rhetoric, and legal analysis -- Advanced analytical tools in legal analysis -- Complex legal analysis and communication.

Currently, electronic agents are being designed and implemented that, unprecedentedly, will be capable of performing legally binding actions. These advances necessitate a thorough treatment of their legal consequences. In our paper, we first demonstrate that electronic agents behave structurally similar to human agents. Then we study how declarations of intention stated by an electronic agent are related to ordinary declarations of intention given by natural persons or legal entities, and also how the actions of electronic agents in this (...) respect have to be classified under German law. We discuss four different approaches of classifying agent declarations. As one of these, we propose the concept of an electronic person (i.e., agents with limited liability), enrolment of agents into an agent register, and agent liability funds as means to serve the needs of all contracting parties. (shrink)

Unger shows how a changed practice of legal analysis can reshape the dominant institutions of representative democracy, market economy and free civil society.

Artificial womb technology for extracorporeal gestation of human offspring (ectogenesis or ectogestation) has profound ethical, sociological and religious implications for Muslim communities. In this article we examine the usage of the technology through the lens of Islamic ethico-legal frameworks specifically the legal maxims (al-Qawaid al-Fiqhiyyah) and higher objectives of Islamic law (Maqaṣid al-Shariah). Our analysis suggests that its application may be contingently permissible (halal) in situations of dire need such as sustaining life and development of extremely premature (...) newborns, for advancing fetal medicine and avoiding maternal co-morbidities during fetal treatment, and for enabling motherhood for women without functional wombs, or who face grave medical risks in pregnancy. However, its application may be proscribed (haram) for enabling healthy women to avoid pregnancy and childbirth, or to achieve parenthood equity. Specification of these views to particular policy, legal contexts and Fatwa will require multidisciplinary Shariah-based bioethical deliberations between jurists, policymakers, and scientists. (shrink)

Sociological Jurisprudence and Legal Economics: Risks and Rewards Terence Daintith gunther teubner Firenze Introduction Contract and Organisation - these ...

"Lawyers and the law have long been the object of popular criticism and satire for the obscurity and incomprehensibility of their language. Legal Discourse provides a novel historical and systematic account of the language of the legal institution together with a sustained criticism of legal exegesis and `legalese' more generally. In the first part of the work the doctrinal history of the legal discipline and its concepts of language, text and sign are examined and assessed. In (...) the second part the contemporary disciples of linguistics, discourse analysis and communication studies are brought to bear upon the task of constructing a theory of legal discourse as a linguistics of legal power" -- Backcover. (shrink)

Care for older persons in India is considered to be the prerogative of the family, particularly the adult children. The legal and policy discourse reiterates this notion as well. In a country that glorifies the notion of filial piety, one finds a rising number of instances of parental neglect and abuse over the last decade. Against this background, it is important to revisit the existing laws, especially the Maintenance and Welfare of Parents and Senior Citizens Act (2007) which aims (...) to provide relief to aggrieved parents and senior citizens. In this Article, I analyse the relevant laws and discuss the nature of complaints lodged by elderly parents at the Maintenance Tribunal in Kolkata (India). The nature of intergenerational disputes and the way they are dealt with by the Tribunal highlight the law’s inability to imagine a world of needs beyond the economic needs of survival. Despite a few positive measures, the law presently falls short of interpreting the social ‘needs’ of belongingness, retaining authority and a position of importance in the family, a set of needs that often remain unspoken and are therefore disregarded by the law’s agent (the Tribunal judge in this case). I argue that in the process of translating the ‘needs’ of older persons into ‘rights’ through the application of the law, justice is disserved. (shrink)

As Next Generation Sequencing technologies are increasingly implemented in biomedical research and care, the number of study participants and patients who ask for release of their genomic raw data is set to increase. This raises the question whether research participants and patients have a legal and moral right to receive their genomic raw data and, if so, how this right should be implemented into practice. In a first step we clarify some central concepts such as “raw data”; in a (...) second step we sketch the international legal framework. The third step provides an extensive ethical analysis which comprehends two parts: an evaluation of whether there is a prima facie moral right to receive one’s raw data, and a contextualization and discussion of the right in light of potentially conflicting interests and rights of the data subject herself and third parties; in a last fourth step we emphasize the main practical consequences of the ethical analyses and propose recommendations for the release of raw data. In several legislations like the new European General Data Protection Regulation, patients do in principle have the right to receive their raw data. However, the procedural implementation of this right and whether it involves genetic counselling is at the discretion of the Member States. Even more questions remain with respect to the research context. The ethical analysis suggests that patients and research subjects have a moral right to receive their genomic raw data and addresses aspects which are also of relevance for the legal discussion such as the costs of release of raw data and its impact on academic freedom. Taking into account the specific nature and implications of genomic raw data and the contexts of research and health care, several concerns and potentially conflicting interests of the data subjects themselves and involved researchers, physicians, biomedical institutions and relatives arise. Instead of using them to argue in favor of restrictions of the data subjects’ legal and moral right to genomic raw data, the concerns should be addressed through provision of information and other measures. To this end, we propose relevant recommendations. (shrink)

Legal analysis is a task underlying many forms of legal problem solving. In the Anglo-American legal system, legal analysis is based in part on legal precedents, previously decided cases. This paper describes a reduction-graph model of legal precedents that accounts for a key characteristic of legal precedents: a precedent's relevance to subsequent cases is determined by the theory under which the precedent is decided. This paper identifies the implementation requirements for (...) class='Hi'>legal analysis using the reduction-graph model of legal precedents and describes GREBE, a program that satisfies these requirements. (shrink)

Lithuania was one of the first states in Europe to approve a comprehensive list of patients’ duties under a special Law on the Rights of Patients of 2010. The approval of the catalogue of patients’ duties at the level of a law is based on the restatement of the principle of equal rights of the parties participating in health care relations, and the prevention of consumerism in these relations. The paper distinguishes between general and special patients’ duties. The general duties (...) include the duty to exercise the patient’s rights in good faith, the ban to abuse them, the duties of cooperation and looking after one’s health, as well as the duty of treatment with due respect. The norms that entrench duties of ethical nature should serve to prevent any inappropriate behaviour of patients in health care institutions. Nevertheless, legal application of these provisions and proving the infringements in practice is likely to be complicated. The special duties include: the duty to familiarise oneself against signature with the internal regulations of the health care institution as presented to him or her, other documents prescribed by the health care institution; the duty to present the documents confirming identity; the duty upon receiving information about the health care services prescribed for him or her to confirm in writing his or her consent or refusal with regard to the provision of such health care services in the cases specified by the law; the duty to provide health care professionals with any information about one’s health, to follow the prescriptions and recommendations of health care professionals, to inform health care professionals about any deviations from the prescriptions or the prescribed treatment regime which he or she has accepted. The legal analysis of the contents of the duties has revealed certain unsubstantial obscurities. The analysis of the provision that enables to take sanctions against the patient infringing their duties has revealed that the health care institution may only terminate provision of health care services to the patient if one of the two alternative conditions is fulfilled. I.e. if a person violates his or her duties and thereby causes danger to their own and other patients’ health and life, or prevents them from receiving high quality health care services. The conclusions show that application of this provision may be problematic: first, due to the juridical technique of the wording of the norm; second – due to complicated substantiating that the patient prevented or prevents other patients from receiving high quality health care services; third – due to the conflict of this provision with the provision of the Law of the Republic of Lithuania on Medical Practice, which provides that a doctor may refuse provision of health care services in cases of real threat to his or her own life; and fourth – the norm does not provide for the right to terminate the provision of services in cases of threat to health and/or life of health care workers (non-specialists). (shrink)

Criminal liability for acts committed by AI systems has recently become a hot legal topic. This paper includes three different contributions. The first contribution is an analysis of the extent to which an AI system can satisfy the requirements for criminal liability: accomplishing an actus reus, having the corresponding mens rea, possessing the cognitive capacities needed for responsibility. The second contribution is a discussion of criminal activity accomplished by an AI entity, with reference to a recent case involving (...) an online bot, the Random Darknet Shopper. This discussion will provide the context for the analysis of commonalities and differences between criminal activities by humans and by artificial systems. The third contribution concerns the evaluation of different ways of addressing criminal activities by AI systems in a regulatory perspective. (shrink)

This article analyzes, digests, and critiques various facets of the current debate regarding the racial profiling of those in the United States who appear to be Arab and/or Muslim. By dispassionately addressing this debate from a variety of perspectives – historical, empirical, and legal - the article specifically examines the fine line between preserving civil rights and civil liberties, while ensuring the security of the American homeland. Following an empirical investigation into the history of racial profiling in the U.S., (...) a legal analysis of the relevant legislation and constitutional standards, and a scientific reporting of the psychological and emotional impact of such profiling tactics, it concludes that the ineffectiveness of racial profiling strongly weighs against its usage and at the very least, discredits many of the arguments put forth in its defense. In reaching this conclusion, I attempt to justify the near-absolute and unqualified preservation of those civil rights and civil liberties that have traditionally defined the American legal system, but which have gradually been eroding in the course of the last five years. As we approach the fifth anniversary of the World Trade Center attacks, this article exposes the ongoing need to re-evaluate the policies and practices put in place in the wake of September 11, 2001. (shrink)

Recent discussions among lawyers, philosophers, policy researchers and athletes have focused on the potential threat to privacy posed by the World Anti-Doping Agency’s (WADA) whereabouts requirements. These requirements demand, among other things, that all elite athletes file their whereabouts information for the subsequent quarter on a quarterly basis and comprise data for one hour of each day when the athlete will be available and accessible for no advance notice testing at a specified location of their choosing. Failure to file one’s (...) whereabouts, or the non-availability for testing at said location on three occasions within any 18-month period constitutes an anti-doping rule violation that is equivalent to testing positive to a banned substance, and may lead to a suspension of the athlete for a time period of between one and two years. We critically explore the extent to which WADA’s whereabouts requirements are in tension with existing legislation on privacy, with respect to UK athletes, who are simultaneously protected by UK domestic and EU law. Both UK domestic and EU law are subject to the European Convention on Human Rights (ECHR) Article 8, which establishes a right to “respect for private and family life, home and correspondence”. We critically discuss the centrality of the whereabouts requirements in relation to WADA’s aims, and the adoption and implementation of its whereabouts rules. We conclude that as WADA’s whereabouts requirements appear to be in breach of an elite athlete’s rights under European workers’ rights, health & safety and data protection law they are also, therefore, in conflict with Article 8 of the ECHR and the UK Human Rights Act 1998. We call for specific amendments that cater for the exceptional case of elite sports labour if the WADA requirements are to be considered legitimate. (shrink)

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Praising wishful thinking is a serious risk that I am willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in my own scholarship. Although I will analyze her claims and will agree mostly with them, I will criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. Accordingly, I intend (...) to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects that are and must be integrated and stating the normative priority of one of them, i.e. the prescriptive, interpretive, and moral.Resumen:Alabar el “pensamiento ilusorio y bien intencionado” es un riesgo que estoy dispuesto a correr no solamente en este artículo para comentar el trabajo de Natalie Stoljar sino además en el resto de mi producción académica. Aun cuando voy a analizar su argumento y voy a estar de acuerdo en la mayor parte con ella, también la voy a criticar por detenerse un paso antes al adoptar la tesis de la deseabilidad o tesis débil, cuando no es meramente posible sino necesario ir un paso más allá al adoptar la tesis de la necesidad o tesis fuerte. Para tal efecto, intento presentar algunas razones adicionales para apoyar el “pluralismo del análisis (jurídico) conceptual” al distinguir las tres investigaciones o proyectos diferentes que están y deben estar integrados y establecer la prioridad normativa de uno de ellos, i.e. prescriptivo, interpretivo y moral. (shrink)

Minority rights law has been an important axis for the evolution of international law itself. While much has been written about minority rights regimes in Europe, there is very little information available with regards to Asian experiences. Countries in Asia, with their diverse populations, are struggling with constructing legal systems that will deliver on the promise of equal rights to all its citizens. This book evaluates these attempts in four Asian states: India, China, Malaysia and Singapore by examining the (...) theory and practice of minority rights law in these vastly different settings. (shrink)

The paper considers the recently published British Medical Association Guidance on ethical issues arising in relation to rationing of treatment during the COVID-19 Pandemic. It considers whether it...

Este artículo reseña: Kevin Fredy HINTERBERGER, Regularisations of Irregularly Staying Migrants in the EU.A comparative Legal Analysis of Austria, Germany and Spain, Hart Publishing/Nomos, Baden-Baden (Germany), 2023, 398 pp.

Häftets samlingstitel: Unveiling the feminism of Islam. AnA society for Feminist Analyses.

The book offers an accessible account of EDs and closely examines the concept of addiction, Drawing on a wide range of medical, psychological, physiological, sociological and philosophical sources, the book examines the benefits and risks of exercise for the ED population, explores the links between EDs and other abuses of the body in the sports environment and addresses the issue of athletes with disordered eating behaviour. Importantly, the book also surveys current legislation and professional codes of conduct that guide the (...) work of fitness professionals and clinicians in this area and I presents a clear and thorough set of case histories and action points to help professionals better understand, and care for, their clients with EDs. --. (shrink)

This article examines the technique and legality of induced abortion of one or more fetuses in a multiple pregnancy, where the aim is the destruction of some but not all of the fetuses present (selective reduction of pregnancy). It concludes that since the legal status of the procedure in English law is unclear, it may be a criminal offence to perform selective reduction even where there is an ostensible clinical need. Moreover if the procedure is carried out negligently, and (...) any infant damaged as a result is subsequently born alive, he or she may have a civil claim against the practitioner who carried out the procedure. (shrink)

Verse 4:34 of the Qur'an has historically been interpreted to give husbands authority over their wives. Even today, such as in a recent case in the United Arab Emirates, Islamic courts have held that the husband has some leeway in "disciplining" wives who act in a rebellious manner to their husbands. This article challenges this interpretation through a comprehensive legal analysis, taking into account the context under which the verse came about, including the societal norms and conditions of (...) the time; the Prophet Muhammad’s profound views against violence towards women; the values of marriage emphasized in the Qur’an; the Qur’an’s incremental approach to improving social behavior and practice; and the higher objectives of Islamic law. (shrink)

The article discusses the characterization of the visualization of visible reality in Crime and Punishment by Fyodor Dostoyevsky. The author suggests that semiotic and legal analysis should be used to understand the meaning of the color code of the novel. Semiotic discourse reduces the ambiguity, uncertainty, and expression of the color code to a conscious, discrete, and conditioned meaning of individual colors. Legal analysis helps to better understand the main idea and other aspects of the novel, (...) encoded in colors. Psychological, personal associations, and symbolic methods are used to reveal direct and indirect meaning of the colors used by Dostoyevsky. The basic characterization of colors proposed by Goethe is employed as a key for color decoding. The article also establishes the correlation of the color code of the novel with the colors of the flags of the Russian Empire and the German Confederation. The message and meaning of the same colors of these national flags are contrasted. The interpretation is complemented by the author’s drawings, which enable to visualize the color code that stores and transmits information about national identity. (shrink)

Connected to the jurisprudence surrounding the copyrightability of a factual compilation, this book locates the footprints of the standard envisaged in a US Supreme court decision (Feist) in Europe. In particular, it observes the extent of similarity of such jurisprudence to the standard adopted and deliberated in the European Union. Many a times the reasons behind law making goes unnoticed. The compelling situations and the history existing prior to an enactment helps in understanding the balance that exists in a particular (...) legislation. While looking at the process of enacting the Database Directive (96/9/EC), this book reflects upon the concern that was expressed with the outcome of Feist decision in Europe. (shrink)

The main purpose of the study is a comprehensive economic and legal analysis of the loan agreement in agriculture in the conditions of formation and development of elements of post-industrial economy in Ukraine. The research methodology is based on a systematic approach using the method of cognition from abstract to concrete and special methods of economic and statistical research, which helped to ensure the reliability of research results and validity of conclusions. It was found that the loan agreement (...) in agriculture is an economic and legal category that ensures the further development of agriculture in Ukraine in conditions of further integration of our economy to world market on competitive terms. It was determined that expanding the use of the loan agreement in agriculture is a necessary lever to increase production efficiency, formation and constant restoration of a competitive technological base in modern conditions and further development of the whole agro-industrial complex considering the formation of post-industrial economy. It is proved that the application of the mechanism of crediting of agriculture in Ukraine has a positive effect on the development of the agro-industrial sector in Ukraine. It is determined that the current level and availability of lending to the agro-industrial complex in Ukraine are insufficient for quality modernization and achieving a high level of efficiency of agricultural production. The main value of this study is that it analyzes the concept through the prism of two categories, namely: legal and economic. (shrink)

Bioethics, Volume 36, Issue 4, Page 381-387, May 2022.

Considerable controversy has recently arisen regarding the patenting of medical and surgical processes in the United States. One such patent, viz. for a "chevron" incision used in ophthalmologic surgery, has especially occasioned heated response including a major, condemnatory ethics policy statement from the American Medical Association as well as federal legislation denying patent protection for most uses of a patented medical or surgical procedure. This article identifies and discusses the major legal, ethical and public policy considerations offered by proponents (...) and opponents of such patents. The existing literature divides up into those who favor such patents essentially without qualification, and those who condemn and wish to outlaw them. We advance a compromise position where administrative and legislative action is called for to provide more specific guidelines regarding the patentability of such processes by the Patent and Trademark Office. Our position, in sum, will be that too much is at stake in this complicated area for either the blanket prohibition, or wholesale, uncritical acceptance, of the patenting of medical and surgical processes or techniques. (shrink)

The use of placebos in therapy or research poses ethical questions. What are the benefits and the costs in ethical terms of condoning deception of the patient or subject? What does the deception mean for the patient's or subject's right to give informed consent to his treatment? Doctors are rightly expected to disclose to their patient facts which would in their judgement best enable him to give informed consent to treatment. On occasion, the degree of this disclosure may be limited (...) by the need to avoid hazarding the success of treatment of an unstable patient whose condition threatens his life, but doctors should have no right to withhold information just to prevent a patient refusing consent to therapy. No such limitation should apply in experiments where full disclosure must operate to enable the subject to give his informed consent. The potential medical benefits for the patient of placebo therapy have to be weighed against all the ethical costs of the deception and dishonesty involved, including the longer term repercussions on doctor/patient trust: similar ethical costs may arise in experiments involving the use of placebos without disclosure of this as a possibility to the subject. Deception is ethically degrading to both parties not only being a breach of trust, but denying the moral autonomy of the patient or subject to make his own choice. The writer concludes that placebos should be used only with full disclosure and consent whether in therapy or in research, and that this need not impede the success of either. (shrink)

ABSTRACT Most pharmaceutical research carried out today is focused on the treatment and management of the lifestyle diseases of the developed world. Diseases that affect mainly poor people are neglected in research advancements in treatment because they cannot generate large financial returns on research and development costs. Benefit sharing arrangements for the use of indigenous resources and genetic research could only marginally address this gap in research and development in diseases that affect the poor. Benefit sharing as a strategy is (...) conceptually problematic, even if one, as we do, agrees that impoverished indigenous communities should not be exploited and that they should be assisted in improving their living conditions. The accepted concept of intellectual property protection envisages clearly defined originators and owners of knowledge, whereas the concept of community membership is fluid and indigenous knowledge is, by its very nature, open, with the originator(s) lost in the mists of time. The delineation of ‘community’ presents serious conceptual and practical difficulties as few communities form discrete, easily discernable groups, and most have problematic leadership structures. Benefit sharing is no substitute for governments’ responsibility to uplift impoverished communities. Benefit sharing arrangements may be fraught with difficulties but considerations of respect and equity demand that prior informed consent and consultation around commercialisation of knowledge take place with the source community and their government.1. (shrink)

Fake news is created as ordinary news stylistically but it consists of deliberate disinformation or hoaxes. The text is generally constructed to cause negative emotions and feelings in readers: fear, panic, distrust, and paranoia. It is done to manipulate the opinion and consciousness of a large number of people and eventually leads to changes in the values, ideas and attitudes that already exist in the public awareness. The result is a schism that has already gone beyond the usual spiritual strife. (...) Moreover, its expansion has weakened the defining feature of Russian Orthodoxy which lies in trust and support of the state and authorities. The Russian Orthodox Church has to deal not only with public health crisis but also with profound differences within its ranks over the churchgoers’ behavior in the conditions of a pandemic. The article analyzes legal regulations and mechanisms for countering fake news about the Russian Orthodox Church, and provides examples from the judicial practice. It also determines the mechanisms of the worshippers’ reaction to the fake news involving the Russian Orthodox Church. Using semiotic methodology, the author reveals re-encoding of the symbolic meaning of such signs as “Russian Orthodox cross” and “red cross”. The connotative meaning of these signs leads to contradictions in the conditions of the COVID-19 pandemic. (shrink)

How one thinks about the relationship between individual autonomy (sometimes referred to as individual willpower or human agency) and technology can influence the way legal thinkers develop policy at the intersection of law and technology. Perspectives that fall toward the `machines control us' end of the spectrum may support more interventionist legal policies while those who identify more closely with the `we are in charge of machines' position may refuse to interfere with technological developments. The concept of soft (...) determinism charts a middle-ground between these two positions and could assist in the formulation of a general theory of the relationship between law and technology. Soft determinism maintains that technological developments are embedded in social, political, economic and other processes, and serve to guide and, potentially, configure future actions and relationships with these technologies, their users, and their subjects: while past technology develops shape the present, individuals and groups can still exert control over these technological developments. (shrink)

Most pharmaceutical research carried out today is focused on the treatment and management of the lifestyle diseases of the developed world. Diseases that affect mainly poor people are neglected in research advancements in treatment because they cannot generate large financial returns on research and development costs. Benefit sharing arrangements for the use of indigenous resources and genetic research could only marginally address this gap in research and development in diseases that affect the poor. Benefit sharing as a strategy is conceptually (...) problematic, even if one, as we do, agrees that impoverished indigenous communities should not be exploited and that they should be assisted in improving their living conditions. The accepted concept of intellectual property protection envisages clearly defined originators and owners of knowledge, whereas the concept of community membership is fluid and indigenous knowledge is, by its very nature, open, with the originator(s) lost in the mists of time. The delineation of ‘community’ presents serious conceptual and practical difficulties as few communities form discrete, easily discernable groups, and most have problematic leadership structures. Benefit sharing is no substitute for governments’ responsibility to uplift impoverished communities. Benefit sharing arrangements may be fraught with difficulties but considerations of respect and equity demand that prior informed consent and consultation around commercialisation of knowledge take place with the source community and their government.1. (shrink)

Similar case analysis (SCA) is an essential topic in legal artificial intelligence, serving as a reference for legal professionals. Most existing works treat SCA as a traditional text classification task and ignore some important legal elements that affect the verdict and case similarity, like legal events, and thus are easily misled by semantic structure. To address this issue, we propose a Legal Event-Context Model named LECM to improve the accuracy and interpretability of SCA based (...) on Chinese legal corpus. The event-context integration mechanism, which is an essential component of the LECM, is proposed to integrate the legal event and context information based on the attention mechanism, enabling legal events to be associated with their corresponding relevant contexts. We introduce an event detection module to obtain the legal event information, which is pre-trained on a legal event detection dataset to avoid labeling events manually. We conduct extensive experiments on two SCA tasks, i.e., similar case matching (SCM) and similar case retrieval (SCR). Compared with baseline models, LECM is validated by about 13% and 11% average improvement in terms of mean average precision and accuracy respectively, for SCR and SCM tasks. These results indicate that LECM effectively utilizes event-context knowledge to enhance SCA performance and its potential application in various legal document analysis tasks. (shrink)

It appears that we know surprisingly little about how judges frame linguistically the rationale behind their decisions and how such texts are structured. Using the concept of rhetorical moves, this paper adopts a genre-based approach to examine the rhetorical structure of legal justifications provided in the decisions of the Polish Constitutional Court. The goal of the study is to verify the claim that the way justifications are drafted is becoming more and more uniform and conventional. The results show that (...) there is a common core of rhetorical structure realized by means of recurrent functional segments of text. This paper proposes a prototypical move structure of a Constitutional Tribunal justification and it argues that that the way justifications are drafted are subject to very concrete, even if not explicitly stated constraints. (shrink)

The article concerns the claim of a handicapped child for having come into the world in a harmed state, called the wrongful life claim. The article first presents an analysis of the legal construction of a claim, which has to do with such aspects as the subject of the relationship of restitution and the legal conditions for restitution, including the problem of the legal protection of the good of the child, the cause and effect relationship, and (...) the harm. The conclusion of the analysis is that on the basis of current Polish law the wrongful life claim would be rejected as unfounded. After carrying out a legal analysis the article also considers problems of a philosophical nature to which the above claim gives rise, such as the problem of nonexistence, the problem of the right not to have been conceived and not to have been born, the problem of measuring the value of a human life, and the problem of procreative freedom and autonomy. At the end the author presents the ethical and social aspects of the claim, such as the promotion of a proeugenic and proabortion attitude, the stigmatization of handicapped children, discrimination on the basis of health, the change of the standard of medical services, and the issue of social care. These analyses lead to the conclusion of the necessity of establishing legal regulations that exclude the possibility of these kinds of claims. At the same time she postulates the strengthening of parental awareness and responsibility and the creation of appropriate legal and social structures to support handicapped children and their families. (shrink)

This commentary summarizes the uncertain state of the law regarding consent for posthumous gamete retrieval. The emergence of a legal framework will be aided by the kind of ethical analysis prompted by this family’s request for removal and preservation of a deceased patient’s ovaries.