Sixth Meeting

Thursday, April 15, 2004

Meeting Agenda

Matters concerning the Constitution of Japan (the Constitution and the progress of science and technology)

After a statement was heard from Professor KIMURA Rihito concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

  • KIMURA Rihito, former Professor, Waseda University; former Director, Waseda University International Institute of Bioethics and Bio-Law

Members who put questions to Prof. KIMURA

Main points of Prof. KIMURA's statement

1. Environmental destruction: The tragedy of genocide

>> When I was teaching at a Vietnamese university in the 1970s, I was appalled to learn the facts about the use of defoliants in the Vietnam War. The tragic genocide caused by defoliant operations led to genetic contamination, with serious results not only for the Vietnamese but also on the American side. Thus, I have seen firsthand the lasting and terrible toll on human life that can result from the abuse or misuse of science and technology.

>> The Human Genome Project ranks with the moon landing as a great achievement, and it is sometimes said that it will open up a rosy future. Initially, though, it was the Department of Energy that promoted this project in the United States. It is a little-known fact that a forerunner of the Department of Energy was the Atomic Bomb Casualty Commission (ABCC), which collected genetic data on survivors in the period immediately after the atomic bombings in Hiroshima and Nagasaki. When I look at the bright promise of the Human Genome Project and then remember its connection with the tragedies of Hiroshima and Nagasaki, I ask myself what scientific and technological progress really means.

>> Because of these concerns, I have attempted to create a bioethics that reframes issues of life within a "super-interdisciplinary" field, that is, one that transcends the boundaries of discrete research areas.

2. The basis of the dignity of life: Restricting life manipulation

>> When I moved to the University of Geneva in 1972, there was a WHO project under way which sought ways to think about advanced medical science and technology in conjunction with human dignity.

>> A conference entitled "Genetics and Quality of Life," held in Zurich in 1973, had a great influence on legislatures around the world by calling attention to three points: (a) questions pertaining to life must not be left solely to self-proclaimed experts in the field; (b) to that end, what is needed is interdisciplinary joint research, leading to (c) the formulation of domestic and, eventually, international guidelines. Seeing participants from all walks of life—not just medical specialists—at the conference, I learned the importance of creating public policy in open forums, at both the international and the domestic level.

>> The approach pioneered by this conference was adopted in the fields of advanced bioscience and biotechnology, leading to major changes in the system for creating guidelines, which, until then, had been headed by academic experts and medical or public health administrators.

3. Imagining the civilization of the future

>> After completing my work in Geneva, I spent some time at Harvard University. There, I attended a constitutional law seminar given by Prof. Lawrence Tribe, a leading authority on American constitutional law. To my surprise, it was subtitled "Biomedical Technology, Biofantasy and Law," and the texts were science fiction.

>> Ordinarily, we can only imagine the law following the lead of society, but at Harvard Law School, they envision the law influencing society and causing it to change, and they adopt a time frame for discussion that extends 500 years into the future. I call this "social change through legal fictions."

>> During the postwar Occupation, the New Dealers applied this same approach, with burning idealism, to the Constitution of Japan. However, another American experiment with Japan as its subject consisted of permitting abortion under the Eugenic Protection Law and controlling the population of Japan by that means, but this met with domestic criticism in the United States.

>> Genocide, whether or not it takes the form of war, must never be committed against human life in any country.

4. Privacy in the IT age

>> It was once the norm, in Japan and around the world, not to release medical records to the patient. Today, however, patients receive information about their case and make their own decisions on that basis.

>> "Informed consent," a loanword that can now be said to have taken root, is a term that I originally introduced to Japan when I advocated this concept in 1980. It differs from related Japanese expressions meaning "explanation and consent" or "care with compliance," because "informed consent" requires that the treatment be explained in plain language and that the patient ultimately understand and accept the explanation, consent to the treatment, and participate in it.

>> There are many problems relating to information on a person's health, including his or her right to know that information, and the obligation of those who control the information to maintain confidentiality.

Conclusion

>> We must not only think about the Japan of today. We must envision Japan one hundred or two hundred years from now and think about the future course of human rights, peace, and human dignity.

Main points of questions and comments to Prof. KIMURA

NAKAYAMA Taro, Chairman

>> Each nation has adopted a different method of regulating advanced bioscience and biotechnology. The United States does not actively impose legal restrictions at the federal level, but in Europe the trend is toward comprehensive legal controls, while in Japan the Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques bans cloning individuals from human somatic cells, but not the use of cloned human embryos and related materials for research purposes. What is the background to these national differences?

>> Recently, many national constitutions have incorporated bioethics provisions; for example, Article 1, Paragraph 1 of the German Basic Law sets forth provisions on "human dignity," and Article 119 of the Swiss Federal Constitution contains provisions on "medical assistance to procreation and gene technology in the human field." I would like to hear your views on establishing constitutional provisions of this kind in regard to advanced bioscience and biotechnology.

>> You stated that the foundation of bioethical thinking is protecting life, and you sounded the alarm about the risk of human life being treated without due respect in advanced scientific research. At the same time, in Japan today, there is an ongoing decline of the birthrate and aging of the population, and the average life span is far longer than it was when the Constitution was enacted. Further, some observers argue that the "life-prolonging treatments" that have accompanied advances in medical care actually encroach on the patient's right of self-determination. Given this background, what do you think about "death with dignity" and the question of euthanasia, which has been legalized in the Netherlands?

>> With many murders and other violent crimes being committed today by juveniles, how to teach the value of life in the schools is an important question. Some German schools have introduced lessons about "things of value to human beings." I believe that, as a nation, we should establish a comprehensive approach or set of guidelines regarding this question. Would you like to comment?

>> I view the "right to know" as important in light of the rise of an advanced info-communications society in recent years. Also, the advent of "electronic government" has led to information about individuals being gathered by the government, and there have also been many cases where personal data have been leaked, often by private companies. Thus, protection of personal information has become an urgent issue. Since the 1980s, many countries have established provisions in their constitutions to deal with this and related matters, and I suggest that Japan should do the same.

>> A growing number of lawsuits require a knowledge of science and engineering, particularly in the area of intellectual property rights, as the plan for the creation of an Intellectual Property High Court attests. Yet, at present, only 8 out of about 3,000 judges in 547 courts have a scientific background. What do you see as the ideal form of the judiciary in relation to scientific and technological progress, including measures to improve this situation?

>> Many countries provide constitutional guarantees for the protection of intellectual property rights and environmental matters. All of these were enacted within the last twenty or thirty years. These are matters that could not have been foreseen at the time when the Japanese Constitution was enacted. I think it is important for Japan, as a nation founded on science and technology, to make explicit provisions of this kind in its Constitution, which is its basic law. Do you agree?


MIZUSHIMA Hiroko (Democratic Party of Japan and Club of Independents)

>> Am I right in thinking that among the fields covered by bioethics are not only the life and dignity of human beings and animals, but also such areas as human value systems?

>> I agree with your comment that self-determination is an important viewpoint in bioethics. At the same time, it is also important to create social guidelines for bioethics. Could you please discuss how the situation can be resolved when parts of the social guidelines conflict with self-determined choices?

>> I agree with you that guidelines should be formulated through open debate among the public, but I would like to point out the importance of making adequate information available for this debate. In the field of bioethics, especially, a small discrepancy in knowledge can alter one's opinion by 180 degrees, and access to information is thus extremely important. I would like to ask you about ways of guaranteeing access to information.

>> The ability to obtain information and decide for oneself is a basic skill which I believe we need to teach in the schools. What ideas do you have in this regard?

>> I do not think that abortion, which is a choice made unavoidably and as a last resort, can be discussed in the same terms as genocide, which consists of attacking others with a definite purpose. How do you define the issue here? And how must we approach it?

>> I believe that the core issue in thinking about bioethics is not debating whether advanced technology is good or bad, but looking at the underlying structure that supports it. Do you agree?

>> In guaranteeing the right to know, in the practice of medical care, releasing patients' records becomes an issue. Recently, the Democratic Party of Japan has drafted a bill on patients' rights, and we take the position that the patient should have the same access to medical records as the doctor. However, there are some areas, such as mental disorders, where exceptions will inevitably have to be provided for. I would like to hear your views regarding the borderlines for guaranteeing the right to know.


SAITO Tetsuo (New Komeito)

>> How do you view bioethics from the perspective of religion as the medium in which ethical beliefs take hold and develop?

>> Does the fundamental view of life differ between monotheistic religions such as Christianity and Islam, and the kind of belief systems seen in Asia?

>> The Constitution provides for "individual dignity," but it is sometimes argued that there is too much emphasis placed on individual dignity at the possible expense of the public good. In this connection, I think that we should establish "the dignity of life" in the Constitution as a still higher concept than "individual dignity." Would you like to comment?

>> Japan's Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques prohibits human cloning techniques but, in regard to certain other types of research, goes no further than restricting them by means of guidelines. With regard to research using fertilized eggs, there is debate over whether these should be regarded as the commencement of life. I would like to hear your opinion on this point.

>> There is a gap between society and the scientific community in knowledge of bioscience and biotechnology, but the media could be said to serve as an intermediary between the two. What are your views in this regard?


YOSHII Hidekatsu (Japanese Communist Party)

>> Einstein contributed to the development of the atom bomb, but he opposed its use. Scientists, both as scientists and as human beings, have a social responsibility to think about the dignity of life. In my view, it is important that scientists in Japan should communicate the substantive nature of the Constitution of Japan to the rest of the world and strive to make its ideals a reality, as they did in 1966, when the Science Council of Japan protested the toxicity of defoliants to the world. What are your views in this regard?

>> In prewar Japan, there was repression of academic freedom; for example, the Takigawa incident of 1933. The guarantee of academic freedom in Article 23 was enacted in light of this historical background, and in 1949 the Science Council of Japan, reflecting on its conduct before the war, pledged to respect the Constitution. However, it seems to me that this spirit is now being forgotten. I think that we must learn from history and carry on the spirit of the Constitution without ceasing. Would you like to comment?

>> The Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques, enacted in 1998, gives concrete form to certain provisions of the Constitution, such as Articles 13 and 24. Because the Constitution already has an ample catalogue of human rights, it will be sufficient to enact a law under the existing Constitution on a specific matter when it becomes necessary in the course of time, as was done in this case. I believe that what is needed now is not to write new provisions into the Constitution, but to put the existing Constitution into practice. What is your view in this regard?


ABE Tomoko (Social Democratic Party)

>> As tragic abuses of science and technology, one can cite the medical experiments conducted on human beings by the Nazis in Germany and by Japan's Unit 731. Germany has established constitutional provisions on "human dignity" and clearly it has rigorously examined its own past, but Japan is in a state that you described as "historical amnesia." Before we review the existing Constitution on the grounds that the progress of science and technology makes it necessary, shouldn't we examine and come to terms with the tragedies that Japan has caused in the past?

>> In its Bioethics Law, France has laid down provisions in such areas as organ transplants and the use of fertilized eggs that amount to a "Declaration of the Rights of the Human Body." I suggest that, before revising the Constitution, Japan should enact a similar legal framework to protect "the rights of the human body" in order to put a brake on advances in science and technology, which presently go unchecked.

>> Leukemia has reportedly increased five- to sevenfold in Iraq since the Gulf War. The effects of depleted uranium shells are being investigated, but if we wait until a WHO study produces definitive results, the harm will only increase. It makes no sense to say that nothing can be done about the dangerous effects of science and technology until the danger has been proved. It seems to me that a warning must be issued before that stage. Do you agree?