Blood transfusions (illustrative image)
On September 17th, European Court of Human Rights ruled on Pindo Mulla vs. Spainruling that Spain had violated articles 8 and 9 referring to the right to private and family life, freedom of thought, conscience and religion in accordance with the European Convention on Human Rights, beyond the fact that its article 2 establishes the right to life. Mulla, a Jehovah’s Witness, was subjected to a blood transfusion to save her life, contrary to her consent motivated by her religious beliefs.
This case once again highlights the tension between medical deontology and the principle of personal autonomyin which religious freedom is framed, but without limiting it to this, but rather applicable to all informed personal decisions regardless of their motivation. Always in the case of an adult, capable, freely and consciously deciding about their own body and medical treatment, even when it affects their physical integrity, but without harming third parties.
The Argentine National Constitution (arts. 19 and 14) enshrines the principle of autonomy and the right to freely profess any religion. These are the premises for the rulings of the CSJN on “Bahamondez, M. s/precautionary measure” (1993), a Jehovah’s Witness who signed a prior consent rejecting the blood transfusion that the hospital, trying to save his life in the face of serious digestive bleeding, tried to implement for him. . Although ineffective, the Court rejected the first ruling of the judge who authorized the transfusion that was ultimately not implemented, because the patient was transferred to another hospital where he recovered without said procedure. The argument was that religious freedom and autonomy are fundamental rights that must be respected even in extreme circumstancesit is not up to the judges to substitute the criteria of the patient who assumes the risk by refusing to receive treatment.
Similarly, “Albarracini Nieves, JW without precautionary measures” (2012), a Jehovah’s Witness who, being in critical condition after an accident, his family presented an injunction to avoid a blood transfusion, in accordance with his previously expressed wishes. Although the court of first instance rejected the amparo, arguing that the right to life (art. 4, CNA) prevailed over any other consideration, the CSJN revoked this decision, stating that the refusal to receive a blood transfusion was part of their autonomy and religious freedom, the right to life not prevailing nor there being a relevant public interest that justifies the restriction on their personal freedom.
In USAthe Illinois Supreme Court in “In re Estate of Brooks” (1965), overturned the lower court’s decision that imposed a blood transfusion to save the life of someone suffering from peptic ulcer, stating that the right to religious freedom can only be limited when it endangers public health or the well-being of others. Similarly in Harvey vs. Strickland (2002), where the South Carolina Supreme Court overturned, for medical malpractice, the lower court’s ruling favoring Dr. Strickland, who gave Charles Harvey a blood transfusion to save his life, after obtaining consent of the patient’s mother contrary to his previous refusal.
In minors the situation changes significantly, since the principle of personal autonomy is limited for the guardianship that the State and the parents or legal representatives have over the well-being of the minor. Legislation and jurisprudence tend to prioritize the best interests of the child, enshrined in the Convention on the Rights of the Child (art. 3), ratified by Argentina, establishing that any decision that affects the minor must ensure their well-being and protection. The Civil and Commercial Code of the Nation (art. 26), regulates under the notion of “progressive autonomy”, decisions related to health for minors between 13 and 16 years old, being able to decide only on non-invasive medical interventions without risk of life. , while those over 16 years of age are considered adults.
For this reason, the CSJN and other courts prioritized the right to life, physical integrity and health of the minor, as inalienable and of superior interest, over the religious freedom of the parents who rejected blood transfusion, with the State being obliged to protect them. The Supreme Court of Canada, in “B. (R.) vs. Children’s Aid Society of Metropolitan Toronto” (1995), recognized that the imposition of religious practices that threaten the safety, health or life of the child is not a freedom included in the Canadian Charter of Rights and Freedoms (arts. 2 and 7) . Due to a life-threatening condition and planned surgery, the baby was placed under the temporary guardianship of that Society to administer the blood.
The problematic thing about these Supreme Court rulings for adults, revoking the lower ones, is the disregard of the right to life as a superior good to protectmedical professional deontology and the right to religious freedom of the professional. The majority bioethics literature argues that, although patient autonomy is central, A balance must be found between the rights of the patient, the duties of the doctor and the superior interest of the State in protecting life. Thus, doctors are subject to the principle of beneficence and non-maleficence, which respectively obliges them to act in the best interest of the patient, involving saving their life or avoiding suffering; and requiring them not to cause harm, by action or omission, entailing the obligation of vital treatments. Therefore, although the principle of autonomy suggests that the decisions of the competent patient must be respected when properly informed, when life is at risk and even more so in an emergency, the doctor must act to save life, even against the patient’s religious beliefs or his family.
This problem, and the emerging one of contradicting arts. 12 and 13 of the American Convention on Human Rights, which subjects religious freedom to the limitations of the law and needs to protect, among other things, public health or morals or the rights or freedoms of others, is resolved by bioethical doctrine of justification. Based on Diego Gracia, the four principles, beneficence, non-maleficence, autonomy and justice, are differentiated at hierarchical levels articulating the private and public dimension of the person. The minimum level required in public matters is constituted by the principles of non-maleficence and justice. The first, ensuring the physical integrity of the person, guaranteeing that they will not be harmed, by action or omission of that which prevents harm. And the second, ensuring non-discrimination, equal access to health goods and resources. Their public relevance places these principles at a level prior to the maximums constituted by autonomy and beneficence as a private dimension. Now, in the event of a conflict, the minimum or public level must be guaranteed, because they make the maximum or private level possible. Thus, the defense of religious freedom remains relevant, but limited to the risk to the patient’s life.
This scheme of priorities is more congruent with the normative corpus itself, also respecting the same rights of medical personnel plus their professional deontology, requiring the establishment of a mechanism of exemption from criminal liability for the doctor when he saves a life beyond the patient’s informed consent. It is even more in line with Western culture whose biblical basis imposes the principle known as Pikuach Nefesh (saving a human life), based on Leviticus 18:5, prioritizing it over almost all other norms; adding Leviticus 19:16 prohibiting deposition against the life of others, as I demonstrate in my work “Duties, Exemptions and Responsibilities in Medical Practice according to Jewish Bioethics” (2021).
Autonomy is not an absolute rightespecially when the patient’s life is at risk, contrary to the doctor’s obligation to cure and forcing him to let die someone he can save. The doctor has the duty to intervene to save his patient’s life, even against his will. Duty also related to the principle of implied consent, as authorization granted by the person, inferred by their action and circumstance when they enter a medical environment as a patient.
