Research Leader: Thierry Vansweevelt
Personality rights are the civil law counterparts to the common law right to privacy and the right to publicity. These rights protect every legal person’s physical, psychological, and moral identity, as well as the external expression of that identity. This research line aims to contribute to current scientific debates and explore new research topics. Our point of departure is Article 8 ECHR (right to respect for private life and family life). Additionally, the University of Antwerp Health Law & Ethics Chair is the fuel and fire of our focus on personality rights in health law.
We aim to contribute to and impact upon scientific debates on the characterisation/delineation and enforcement of personality rights. The characterisation of personality ‘rights’, particularly as compared to other theories such as ‘private human rights’, is important. This is particularly in light of the enforceability in private law of new formulations of human rights, such as the right to a healthy environment or the collective rights of minorities (studies of belonging). Enforceability issues also have a cross-border dimension. Our research into the enforcement of personality rights – through tort law or specific remedies – is conducted under our research line Liability and Accountability.
We focus on the right to self-determination, particularly in health law. This focus is also connected with our research into Contractualisation and into Liability and Accountability. We particularly investigate the role of self-determination vis-à-vis the commodification of the human body, and possible restrictions by way of State regulation. These factors may push people to move across borders for healthcare not available to them in their own countries.
Personality rights usually fall under the realm of the law of persons. We investigate how personality rights in this regard may be delineated vis-à-vis family law, having regard for the competing objectives of the law of persons (the individual perspective of autonomy) and family law (the collective perspective). We thus study family law through the lens of the right to respect for private life. A very strong connection with private international law, and the possibility of ‘limping relationships’ is palpable. The contractual subservience to private family law rules also leads to research into (internal) legal pluralism. This focus is linked with our research into Kinship Studies.
Another new debate is the determination of the scope of personality rights. Personality rights are usually exclusively associated with natural persons and their individual rights. There will be investigation of the extent to which personality rights can also be attributed to:
- legal persons in the strict sense (public, private, and mixed legal persons);
- other forms of company, de facto associations, and individuals as a member of a group (for example a minority group);
- human life before birth and after death; and
- animals and things.
Specific Research Questions
- What is the correct legal characterisation of personality rights, and how can these be differentiated from fundamental rights and property rights?
- What is the scope of personality rights, such as the right to self-determination, privacy, and non-discrimination, within the field of health law in particular? What is the scope of personality rights if they are conceived from a concept of positive rights?
- Vis-à-vis private autonomy, research is conducted into decisions regarding termination of pregnancy, euthanasia, organ transplantation and trafficking, and involuntary treatment. The core question is whether a fair balance may be found between the right to self-determination, the rights and interests of others, and the public interest.
- In relation to the extent of private autonomy, research is conducted into the legal aspects of a last will (a testament or other document).
- With regard to private autonomy and non-discrimination, research is conducted into the legal challenges raised by multiculturalism in healthcare. Here the focus is on the rights and duties of healthcare providers and patients when manifesting their cultural and religious preferences in the healthcare context.
- With regard to privacy, non-discrimination, and the protection of personal identity and integrity, research is conducted into new legal challenges raised by emerging and converging technologies, such as genetics and neurotechnologies.
- Does mutual influence exist between personality rights and family law?
- To what extent do personality rights give rise to the individualisation of family law?
- Can acquired autonomy be used to create familial relationships and, if so, to what extent? The rise of family governance means that this is important both for traditional as well as non-traditional family forms.
- Which family law restrictions can be imposed on individual personality rights? This includes the spousal obligation of fidelity, the obligation to cohabit and the temporary restraining order for domestic violence offenders.
- What is the scope of personality rights, and is this scope shifting?
- To what extent are personality rights, either in fact or in law, restricted for certain categories of persons, e.g. minors, adults without capacity, or prisoners?.
- To what extent can personality rights also be attributed to other legal persons than human beings, or to other entities than legal persons?
- What is the legal status of unborn human life? 4.4. What is the fate of personality rights after the death of the legal person?
- What is the legal status of animals and things, and can the traditional summa divisio between persons and things be maintained?
- What is the legal status of family ties created and considered valid in some countries but not in others (e.g., surrogacy)? )