Academic Year 2011-2012
Andrea Büchler is the Chair of Private and Comparative Law in the Institute of Law at the University of Zurich. She earned her MA, Ph.D. and venia docendi in Private Law, Comparative Law and Gender Law between 1990 and 2002 at the University of Basle, Switzerland. She joined the University of Zurich as Professor of Law in 2002. Her areas of research are: Family Law, Law of Persons, Comparative Law, Islamic and Middle Eastern Law, Medicine and Law, and Legal Gender Studies. She founded the Center for Islamic and Middle Eastern Legal Studies at the Faculty of Law of the University of Zurich in 2008, is the on-site director of the Law Summer School in Cairo, and was the co-director of the University Priority Research Programme «Asia and Europe». In 2003, she co-founded the Center for Family Sciences, a Switzerland-wide association which initiates, conducts and supports high-quality research in the field of the family. She was awarded a fellowship at the Institute of Advanced Studies, Berlin, for the academic year 2008/2009 and is currently a fellow at the Collegium Helveticum ETH/UZH.
Organ Transplantation: Sanctity or Social Responsibility of the Body? Religious, cultural and legal norms and the public and private struggles over the body
The demand for donor organs far exceeds the supply. The organ shortfall is responsible for an intense public debate in Western countries about possible legislative and administrative measures to foster organ donation. Potential donors and recipients inhabit distinctive social worlds, are guided by multiple understandings of moral practice and are rooted in diverse cultural and religious traditions. Despite the contemporary presence of a variety of religious, cultural and ethnic backgrounds the discourse and laws in Western countries often rely on the existence of a common bioethical perspective. The issue of organ transplantation touches upon several fundamental concepts of human existence that frame the public discourse and private struggles: the definition of death, self-determination, physical integrity, the inviolability or the disposability of the body, and the responsibility for the life of others and the community. The pivotal principle in modern Western codes and court decisions regulating medical interventions is the self-determination of the person concerned. The person disposes of his or her body and health and is the focal point of the allocation of rights; in the continental European perspective the relationship between the person and their body is more a relationship of being (Sein), in the Anglo-American legal culture more one of possession (Haben). Postmodern views implicitly question the importance of self-determination: If the individual (das Subjekt) is a product of technical intervention and discursive construction (“Sein ist Kommunikation” [Jean-Luc Nancy]), its suitability as the starting point and the pivot of deliberation about the prospects and limits of organ transplantation is at stake. Or: If the body is increasingly seen as an entity existing at the intersection of society and medical practice, does this inevitably imply its social responsibility?
The heterogeneity of religious and cultural norms presents a challenge to the public discourse and the legislator. What is the role of religious and cultural norms in determining the level of organ donation? What are the different religious narratives of the body with regard to organ donation and transplantation? How are they mirrored in the laws of different countries? What relevance do religious norms, expectations and practices have in the context of the laws on organ transplantation in Western countries? Is there an obligation to accommodate a multiplicity of cultural and religious norms and perceptions about the body? Would this amount to legal pluralism, or do the normative frameworks of Western countries in the field of organ transplantation have the openness to incorporate religious and cultural diversity? Moreover, the substantial progress in the technical appropriation of the body and its parts puts a new complexion on the relationship of the person to their body. Does the conquest of the interior of the body by the transplantation medicine go along with a shift of values and assessments, and has it shattered some of the traditional concepts of the body? What are the cornerstones of a bioethical and legal perspective that addresses, integrates, and accommodates a multiplicity of views between the poles of the body as inviolable entity or organ donation as a concern of social responsibility? The paper wants to uncover religious and cultural norms that determine the public and private struggles over the body and discuss their role in formulating bioethical and normative perspectives in a time of great medical upheaval.