Research leaders: Thierry Vansweevelt & Kristof Vanassche
Overview
Personality rights protect everyone’s body, thoughts, feelings, and behaviour in their relationship with other citizens. In that respect, they are private fundamental rights. The fundamental rights relating to personality play out in the relationship between citizens and public authorities instead. Personality rights recognise individuals as autonomous individuals and as members of groups, capable of making their own decisions, and are affirmative in nature in that they enable individuals and groups to live their lives as they wish.
Personality rights are enshrined in the European Convention on Human Rights (ECHR) and other supranational human rights instruments, and are in turn guaranteed under national law. The point of departure is Article 8 ECHR (right to respect for private life and family life), which is “primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings” (Botta v. Italy, 1998).
In this research line, we examine the contentious issues and unresolved challenges in the field of personality rights as they are debated in private law. The aim is to delineate the scope of personality rights, to analyse how the right to self-determination and public policy considerations are balanced, and to investigate how personality rights may be subject to reinterpretation and expansion as a result of societal and technological developments.
Debates
The first objective of the research line is to contribute to a clearer characterisation and demarcation of personality rights. Although personality rights are a central instrument of private legal protection, their theoretical basis remains the subject of academic discussion. It is important to explore what interests they aim to protect, so as to understand the exact roles they fulfil and to shed light on their nature and scope. This is especially relevant in view of newly emerging contexts where the interests at stake still need to be defined or are moving towards a new balance. Where this involves the legal recognition of the interests of other entities than persons (e.g., foetuses, animals, AI, legal persons), this exploration will closely align with our research line Persons and goods. It is also important to examine how personality rights relate to fundamental rights and property rights, where different systems of protection may apply. To the extent that this involves an investigation of the enforceability of personality rights – through tort law or specific remedies – this is connected with our research line Liability and Accountability.
Personality rights are usually included in the law of persons. A second objective of this line of research is, however, to explore the mutual influence with family law, in particular through family personality rights. These include personality rights as a member of a family, the right to establish and terminate family relationships, and the right to respect of family life. The interaction between personality rights and family law is particularly interesting in relation to the competing goals of the law of persons (the individual perspective of autonomy) and family law (the collective perspective). Hence, we also research family law through the lens of the right to respect for private life. The contractual subservience to private family law rules also leads to research into (internal) legal pluralism. This focus is linked with our research line Kinship Studies.
The third and final objective concerns the nature and the scope of the right to self-determination in the health field, as defined by the Law on the Rights of the Patient and special laws governing specific medical interventions. This focus is also connected with our research line Contractualisation and, as to the enforcement of personality rights, with our research line Liability and Accountability. The fuel and fire of our focus on personality rights in health law is the Antwerp Health Law and Ethics Chair. Specific attention is paid to potentially controversial interventions and new societal and technological developments. The regulation of healthcare interventions such as abortion, euthanasia, organ transplantation, and medically assisted procreation is in Belgium gradually becoming more liberal. It is important to understand how and why these regulations are evolving. To the extent that the regulation of interventions depends on the legal status of the body material or entities involved (e.g., embryos, foetuses, organs, blood, DNA), this examination relates to our research line Persons and goods. With regard to societal developments, the focus is on the legal challenges raised by multiculturalism, as our society is becoming superdiverse due to high levels of migration. Persons with a migration background may experience significant challenges when they seek healthcare, as a result of inequities in access, difficulties in communication, and cultural and religious preferences. In this light, it is important to define the right to culturally appropriate healthcare and to examine the possible need to accommodate these preferences. Finally, as a result of new technological developments, we are facing unprecedented possibilities and challenges in the health field. For instance, the introduction of AI and big data, the possibility of genome modifications, and developments in neurotechnology have great potential to transform healthcare. However, they also raise major challenges for patient rights. Here it is important to examine whether new regulatory responses are required to ensure the protection of one’s physical and mental integrity.
Specific research questions
- How can we draw a reliable picture of the dynamic interrelation between evolutions in social practices and transformations in legal provisions and state policies?
- What is the impact of changing gender perspectives on kinships structures and relations?
- How should the law deal with the creation and legal recognition of homo- or poly-parental ties through reproductive technologies that exceed the binaries of wife/husband and mother/father?
- How should the law address cross-border aspects of non-conventional family relations that are related to migration and globalisation (e.g. kafala, surrogacy)?
- How should we understand the shortcomings and deficiencies of the legal and policy frameworks that govern kinship structures and family life and their (in)direct consequences on the psycho-physical and social conditions of individuals involved?
- How do we deal with differences in national laws relating to the acceptance of new forms of families/kinship?
- How can we both empower and protect vulnerable adults, particularly in the context of a risk of elder abuse?