Is there a right to access innovative surgery?

Demands for access to experimental therapies are frequently framed in the language of rights. This article examines the justifiability of such demands in the specific context of surgical innovations, these being promising but non‐validated and potentially risky departures from standard surgical practices. I argue that there is a right to access innovative surgery, drawing analogies with other generally accepted rights in medicine, such as the right not to be forcibly treated, to buy contraceptives, and to choose to have an abortion, including a post‐viability abortion where the mother's life or health is threatened by the pregnancy. I argue that we accept these rights because we believe that people are entitled to try to preserve their lives and health and to make choices of an important and intensely personal kind, and I suggest that a person's choice of medical treatment should be seen in the same light. However, since few rights are absolute, I also consider the circumstances in which it may be justifiable to limit the right to access innovative surgery. In discussing this question, I apply the human rights standard of proportionality, comparing the importance of the reasons for limiting the right with the severity of the invasion on liberty.     

Human Rights Reasoning and Medical Law: A Sceptical Essay

I am sceptical as to the contribution that human rights can make to our evaluation of medical law. I will argue here that viewing medical law through a human rights framework provides no greater clarity, insight or focus. If anything, human rights reasoning clouds any bioethical or evaluative analysis. In Section 1 of this article, I outline the general structure of human rights reasoning. I will describe human rights reasoning as (a) reasoning from rights that each person has ‘by virtue of their humanity’, (b) reasoning from rights that provide ‘hard to defeat’ reasons for action and (c) reasoning from abstract norms to specified duties. I will then argue in Section 2 that, unless we (a) re‐conceive of human rights as narrow categories of liberties, it becomes (b) necessary for our human rights reasoning to gauge the normative force of each claim or liberty. When we apply this approach to disputes in medical law, we (in the best case scenario) end up (c) ‘looking straight through’ the human right to the (disagreement about) values and features that each person has by virtue of their humanity.     

Owning Genetic Information and Gene Enhancement Techniques: Why Privacy and Property Rights May Undermine Social Control of the Human Genome

In this article I argue that the proper subjects of intangible property claims include medical records, genetic profiles, and gene enhancement techniques. Coupled with a right to privacy these intangible property rights allow individuals a zone of control that will, in most cases, justifiably exclude governmental or societal invasions into private domains. I argue that the threshold for overriding privacy rights and intangible property rights is higher, in relation to genetic enhancement techniques and sensitive personal information, than is commonly suggested. Once the bar is raised, so-to-speak, the burden of overriding it is formidable. Thus many policy decisions that have been recently proposed or enacted – citywide audio and video surveillance, law enforcement DNA sweeps, genetic profiling, national bans on genetic testing and enhancement of humans, to name a few – will have to be backed by very strong arguments.     

Frozen embryos, genetic information and reproductive rights

Recent ethical and legal challenges have arisen concerning the rights of individuals over their IVF embryos, leading to questions about how, when the wishes of parents regarding their embryos conflict, such situations ought to be resolved. A notion commonly invoked in relation to frozen embryo disputes is that of reproductive rights: a right to have (or not to have) children. This has sometimes been interpreted to mean a right to have, or not to have, one's own genetic children. But can such rights legitimately be asserted to give rise to claims over embryos? We examine the question of property in genetic material as applied to gametes and embryos, and whether rights over genetic information extend to grant control over IVF embryos. In particular we consider the purported right not to have one's own genetically related children from a property‐based perspective. We argue that even if we concede that such (property) rights do exist, those rights become limited in scope and application upon engaging in reproduction. We want to show that once an IVF embryo is created for the purpose of reproduction, any right not to have genetically‐related children that may be based in property rights over genetic information is ceded. There is thus no right to prevent one's IVF embryos from being brought to birth on the basis of a right to avoid having one's own genetic children. Although there may be reproductive rights over gametes and embryos, these are not grounded in genetic information.     

Feeding Territoriality in Aquatic Insects: Cost-Benefit Models and Experimental Tests

Two points are evident from a review of the literature describingfeeding territoriality in aquatic insects. First, feeding territorialityis much more common in this group than was previously recognized.Second, most of the examples involve species that have smallforaging areas and harvest rapidly renewing resources, suchas filterable particles and attached microalgae. To interpretthese patterns, I discuss how the net benefits of territorialdefense vary as a function of several components of food availability. I present the results of recent laboratory and field experimentstesting cost-benefit models that predict patterns of territorysize and defense frequency. Feeding-territory size in grazingcaddisfly larvae increases with the resident's body size andis inversely related to food abundance, which agrees with thepredictions of several models of optimal territory size. Twokinds of stream insects that rely on food items delivered bywater currents (i.e., surface-feeding water striders and filter-feedinglarval black flies) respond to increases in food abundance byreducing their allocation of time to territorial defense.Inblack flies, complex interactions between competitor densityand food abundance also influence the amount of time spent defendinga territory. I consider several connections between territorial behaviorand interspecific competition. The distribution and abundanceof both territorial species and their competitors may dependin part upon how the costs and benefits of feeding territorialityvary along resource abundance gradients. The tendency of someterritorial grazers to settle preferentially near conspecificsmay occur because animals living in groups exclude interspecificcompetitors more efficiently than isolated individuals, whichsuggests some simple tests of optimal group size models. I conclude by summarizing the strengths and weaknesses of thesestudy systems, both as a source of new and broader theoriesof feeding territoriality, and as a testing ground for thosetheories. An important strength of these consumer-resource systemsis the ability to conduct realistic experimental studies examiningthe causes and consequences of territoriality. One importantweakness is the lack of information on the time-energy budgetsof these insects. The acquisition of such information deservesa high priority, since it will permit more rigorous tests ofcost-benefit models that evaluate the adaptive significanceof territorial behavior.     

Vicissitudes of benefit sharing of crop genetic resources: downstream and upstream

In this article, we will first give a historic overview of the concept of benefit sharing and its appearance in official agreements, particularly with respect to crop genetic resources. It will become clear that, at present, benefit sharing is primarily considered as an instrument of compensation or exchange, and thus refers to commutative justice. However, we believe that such a narrow interpretation of benefit sharing disregards, and even undermines, much of its (historical) content and potency, especially where crop genetic resources are concerned. We argue that benefit sharing should not be based merely on commutative justice but rather on a broader model that is also grounded in the concept of distributive justice. This has repercussions for the application of benefit sharing, which we try to clarify by distinguishing between downstream and upstream benefit sharing. Upstream benefit sharing is not so much inspired by compensation for actions done, or the distribution downstream of benefits developed, but by the idea of shared decision-making on the research and development of resources fundamental to human welfare. Going upstream in the research process of crop genetic resources, and determining research agendas and improving crops according to the needs of the poor, benefit sharing may well be a tool to contribute to world food security and global justice. We concretize our ideas on upstream benefit sharing by introducing a set of criteria that determine the success of consultations on agricultural research agenda setting.     

Searching for Guarantees in the Midst of Uncertainty: Negotiating Aboriginal Rights and Title in British Columbia

In this article, I analyze the concern over the concept of "certainty" in relation to Aboriginal rights, treaties, and economic prosperity in the province of British Columbia, Canada. In the context of treaty negotiations in British Columbia, certainty requires that the Aboriginal rights of a First Nation be legally transformed into a set of treaty rights. This transformation moves these rights from a state of "uncertainty" to a state in which they are "certain," and is said to encourage investment in resource industries like forestry and mining. I argue that treaty negotiations are a form of governmentality that helps regulate a population, mediates between Aboriginal-rights claims and the demands of global capital, and produces effects of state sovereignty. I also argue that the focus on undefined Aboriginal rights as the source of economic uncertainty fails to acknowledge the lack of certainty inherent within capitalism.     

Heritable variation for territorial success in two Drosophila melanogaster populations

Male fruitflies from stocks from two localities were artificially selected for defence of a food area against intruding males. Both stocks showed a rapid replicable response to selection over a few generations, indicating considerable genetic variation for territorial success in the base populations. Crosses between lines indicate directional dominance for increased territorial success and no maternal or paternal effects. Selected males escalated relatively more frequently against territory residents than control males, and won relatively more escalated encounters. There was no correlated response in body weight. In the presence of territories, selected males had a higher mating success with inseminated females than control males, but did not differ in mating speed. Indirect selection for territorial success was carried out by allowing flies to mate in the presence of different types of resources. After 21–26 generations, males from lines held in cages with discrete resources where territories could be established had greater territorial success than males from lines held in cages with one large resource. This genetic divergence in response to resource type is consistent with the heritable variation in territorial success and mating success of territorial males.     

Addressing the concerns of rural communities about access to plants and knowledge in a<Emphasis Type="Italic">sui generis</Emphasis> legislation in Cameroon

This article assesses the traditional systems of accessing and using plant genetic resources as well as the benefit sharing and systems of sanctioning infringement in the context of biodiversity related activities in specific areas in the Northwest province of Cameroon. The article also addresses the type research and development activities using plant genetic resources and associated traditional knowledge in the context of Cameroon, the current laws regulating such activities and the extent to which these activities and laws affect and/or protect the customary biodiversity rights of rural communities. The article uses these assessments to suggest the context under which asui generis legislation for the protection of the biodiversity rights of rural communities can be established in Cameroon.     

Property rights and the marginal wildebeest: an economic analysis of wildlife conservation options in Kenya

This paper discusses policy responses to the potential loss of biodiversity in the Mara Area of Kenya from the conversion of essentially wild and undeveloped rangeland to developed agriculture. Property rights are central to the debate, and raise two fundamental issues. First, to what extent do the Maasai, the traditional users and owners of the land, have the right to benefit from the development potential of their land to further their economic, social and political standing, even if by so doing they create domestic and global externalities through the loss of biodiversity. Second, if the state alienates their development rights in the name of conservation, then to what extent should the state compensate the Maasai for their lost economic opportunities. To the Maasai, conservation as implemented through Government policy is a publicc bad: they are denied access to resources, their costs of production are significantly increased, and development is slowed down or actively discouraged. A cost:benefit analysis suggests that it is neither supportable nor sustainable to condemn the Maasai to a poverty trap on behalf of conservation, and that it is instead socially prolitable for the Kenyan Government to meet in full their opportunity costs of forgone economic benefits.     

Justice and equal opportunities in health care

The principle that each individual is entitled to an equal opportunity to benefit from any public health care system, and that this entitlement is proportionate neither to the size of their chance of benefitting, nor to the quality of the benefit, nor to the length of lifetime remaining in which that benefit may be enjoyed, runs counter to most current thinking about the allocation of resources for health care. It is my contention that any system of prioritisation of the resources available for healthcare or of rationing such resources must be governed by this principle.
This can have apparently paradoxical conclusions in that it can seem wasteful to give someone with a very slim chance of a lifesaving treatment the same priority as someone with a much better chance. In an important and thoughtful recent paper, Julian Savulescu has concentrated on this apparent weakness and has argued for a particular conception of the good or benefit to be achieved by a healthcare system which purports to demonstrate the inadequacies of an equal opportunities approach to prioritisation and to replace it with an altogether better account. This paper will show that a rational 'reasons based consequentialism' is more in line with the equal opportunities approach, which I defended some time ago in these pages, than with that of Savulescu. I shall then examine more closely the conception of equal opportunities in health care and show that if we give weight to an individual's reasons, and what is expected to be good for them, we will opt for exactly the equality based account of distributive justice that I have recommended.     

Misanthropy,idealism and attitudes towards animals

Abstract

When evaluating the ethical status of an action that harms a nonhuman animal (henceforth animal), one might weigh the benefit to humankind against the cost of the harm done to the animal. To the extent that one does not like humans (is misanthropic), one will not be likely to think that benefits to humans can justify doing harm to animals. We hypothesized that misanthropy would be less strongly related to support for animal rights among idealists (who tend not to do cost-benefit analysis) than among nonidealists. College students (n=154) completed a questionnaire which included questions designed to measure their ethical idealism (ten items), misanthropy (five items), and attitudes towards animal rights and animal research (28 items). Respondents were classified as being idealistic if their score on the idealism scale was greater than the median score. The regression lines for predicting attitudes towards animals from misanthropy differed significantly between idealists and nonidealists. Among nonidealists there was a significant positive relationship between misanthropy and support for animal rights, but among idealists the regression line was flat.     

Property Rights in Fisheries: Iceland’s Experience with ITQs

The fundamental problem of economic inefficiency in fisheries, the so-called common property problem, may be seen to be caused by inadequate or lacking property rights in the underlying natural resources. The introduction of Individual Transferable Quotas (ITQs) into fisheries represents an attempt to correct this failure. ITQs, however, are not property rights in the relevant natural resources, i.e. the fish stocks and their habitat. They are merely harvesting rights and thus far from ideal as property rights. Nevertheless, ITQs have been introduced in numerous fisheries around the world, apparently with generally, even consistently, good economic results. This paper outlines the basic theory of property rights and the strengths and weaknesses of ITQs as property rights in fisheries. The paper goes on to discuss the Icelandic ITQ system and compares its property rights value with that of the New Zealand ITQ system and the Norwegian IQ system. Finally, the paper reviews some measures of the economic outcomes of the ITQ system in Iceland.     

Culture and Rights after Culture and Rights

Building on a critical, theoretical approach outlined in Culture and Rights: Anthropological Perspectives (Cowan et al. 2001a), I posit rights processes as complex and contradictory: Both enabling and constraining, they produce new subjectivities and social relations and entail unintended consequences. To encourage interdisciplinary engagement on these themes, I explore selected texts that consider the relationship between culture and rights, addressing two literatures: (1) debates on culture, rights, and recognition in the context of multiculturalism among political philosophers and (2) an emerging literature by anthropologists, feminists, critical legal scholars, and engaged practitioners analyzing empirical cases. Although political philosophers elucidate ethical implications and clarify political projects, an outmoded arsenal of theoretical concepts of "culture,""society," and "the individual" has hampered their debates. When accounts are both theoretically informed and empirically grounded, contradictions, ambiguities, and impasses of culture and rights are more fully explored and the liberal model of rights and multiculturalism is more open to interrogation.     

Afterword to "Anthropology and Human Rights in a New Key": The Social Life of Human Rights

In this article, I argue for an ethnographic approach to human rights that recognizes the plural and fragmentary nature of the international rights regime and the ideological promiscuity of rights talk. Instead of determining in advance the social or political character of rights, anthropologists could profitably draw from the insights of early-20th-century "legal realists" and look closely at the underlying assumptions and hidden practices of political and legal processes. Studying the "social life of human rights" would involve focusing on, inter alia, the performative dimensions of human rights, the dynamics of social mobilization, and the attitudinal changes of elite and nonelite social actors towards formulations of "rights" and "justice," both inside and outside the legal process. I conclude with a review of recent anthropological research on human rights epistemology and evaluate its implications for human rights policy.     

Genetic enhancement--a threat to human rights?

Genetic enhancement is the modification of the human genome for the purpose of improving capacities or 'adding in' desired characteristics. Although this technology is still largely futuristic, debate over the moral issues it raises has been significant. George Annas has recently leveled a new attack against genetic enhancement, drawing on human rights as his primary weapon. I argue that Annas' appeal to human rights ultimately falls flat, and so provides no good reason to object to genetic technology. Moreover, this argument is an example of the broader problem of appealing to human rights as a panacea for ethical problems. Human rights, it is often claimed, are 'trumps': if it can be shown that a proposed technology violates human rights, then it must be cast aside. But human rights are neither a panacea for ethical problems nor a trump card. If they are drafted into the service of an argument, it must be shown that an actual human rights violation will occur. Annas' argument against genetic technology fails to do just this. I shall conclude that his appeal to human rights adds little to the debate over the ethical questions raised by genetic technology.     

PROVIDER‐INITIATED HIV TESTING AND COUNSELING IN HEALTH FACILITIES – WHAT DOES THIS MEAN FOR THE HEALTH AND HUMAN RIGHTS OF PREGNANT WOMEN?

Since the introduction of drugs to prevent vertical transmission of HIV, the purpose of and approach to HIV testing of pregnant women has increasingly become an area of major controversy. In recent years, many strategies to increase the uptake of HIV testing have focused on offering HIV tests to women in pregnancy-related services. New global guidance issued by the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) specifically notes these services as an entry point for provider-initiated HIV testing and counseling (PITC). The guidance constitutes a useful first step towards a framework within which PITC sensitive to health, human rights and ethical concerns can be provided to pregnant women in health facilities. However, a number of issues will require further attention as implementation moves forward. It is incumbent on all those involved in the scale up of PITC to ensure that it promotes long-term connection with relevant health services and does not result simply in increased testing with no concrete benefits being accrued by the women being tested. Within health services, this will require significant attention to informed consent, pre- and post-test counseling, patient confidentiality, referrals and access to appropriate services, as well as reduction of stigma and discrimination. Beyond health services, efforts will be needed to address larger societal, legal, policy and contextual issues. The health and human rights of pregnant women must be a primary consideration in how HIV testing is implemented; they can benefit greatly from PITC but only if it is carried out appropriately.     

Introduction to "Anthropology and Human Rights in a New Key"

In this "In Focus" introduction, I begin by offering an overview of anthropology's engagements with human rights following the American Anthropological Association's (AAA) 1947 "Statement on Human Rights." After offering a rereading of the Statement, I describe the two major anthropological orientations to human rights that emerged in the 1980s and 1990s, following several decades of relative disengagement. Finally, I locate the articles in relation to this history and indicate how, when taken as a whole, they express a new key or register within which human rights can be studied, critiqued, and advanced through anthropological forms of knowledge. This "In Focus" is in part an argument for an essentially ecumenical anthropology of human rights, one that can tolerate, and indeed encourage, approaches that are both fundamentally critical of contemporary human rights regimes and politically or ethically committed to these same regimes.