Wibren Van der Burg, Legislation on Human Embryos: From Status Theories to Value Theories (August 30, 2010). Erasmus Working Paper Series on Jurisprudence and Socio-legal Studies No. 10-03. Available at SSRN: http://ssrn.com/abstract=1668407
In this paper I argue that we should separate the legal-political debate on embryos from the ethical debate, and focus on the functions of legislation rather than on the moral status of the embryo. The two major theoretical positions in the moral and legal debates are a rights theory and an interests theory. Each of these two theories may be connected to one of the two classical functions of the law: the protective function and the instrumental function. Each of these theories may shed light on some dimensions of embryo legislation; each, however, is also seriously inadequate in some respects. These inadequacies may, at first sight, be avoided in an intermediate position: the idea of a ‘growing protectability’ or growing status of the embryo. However, from a legal point of view, this is not an adequate solution at all, because the lack of theoretical foundation for this position makes it almost impossible to implement it and to elaborate it in an unambiguous legal theory.
An alternative may be found in a third theory, which focuses on a third function of law: the symbolic or expressive-communicative function. Law may be seen as the expression of certain fundamental values that are held in high esteem by a political community. We should distinguish two types of legal value theories: an individualistic one, as suggested by Ronald Dworkin, which is in fact a variety of the growing protectability thesis, and a more collective one, as connected to the symbolic function of law. Analyzing this function of law will open the way for developing a value theory concerning the use of human embryos, instead of a status theory of the embryo.
