Personality Rights

Research Leader: Thierry Vansweevelt

Presentation

Personality Rights is a Faculty Key Research Domain. The University of Antwerp Health Law & Ethics Chair furthermore is the fuel and fire of our focus on personality rights in health law.

Personality Rights are the Continental counterparts of the Common-Law Right to Privacy and Right to Publicity. They protect every legal person’s physical, psychological and moral identity as well as the external expression of such characteristics. This line of research aims at further developing the debate in current scientific controversies and at exploring new research topics. Our point of departure is article 8 ECHR (right to protection of private life and family life).

Current debates

We aim at further developing the scientific debate on the characterisation/delineation and enforcement of personality rights. The characterisation of personality ‘rights’, particularly compared to other theories such as ‘private human rights’ is important in light of the enforceability in private law of the new generations of human rights, such as the right to a healthy environment or collective rights of minorities. Our research into the enforcement of personality rights – through tort law or specific remedies – is conducted in 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 & Accountability. We particularly investigate the role of self-determination vis-à-vis the commodification of the human body, and the possible restrictions in State regulation.

New debates

Personality rights are usually brought within the area 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 (individual perspective: autonomy) and family law (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 possible creation of ‘limping relationships’ is palpable. The contractual subservience to private family law rules will also give rise to research into (internal) legal pluralism. This focus is linked with our research into Kinship Studies.

Another new debate is the determination of the personal and temporal scope of personality rights. Personality rights are usually exclusively associated with natural persons and their individual rights. Therefore, attention will also be paid to 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, factual associations and individuals as a member of a group (for example a minority group). Finally, personality rights can also be delineated in time. Usually, protection is offered from the moment of birth to the moment of death. In this line of research, the prenatal and post-mortal status of the person will also be researched.

Specific Research Questions

1. What is the correct legal characterisation of personality rights and how can these be differentiated specifically from fundamental rights and property rights?

2. What is the scope of the right to self-determination within the field of health law in particular, if the personality rights are conceived from a concept of positive rights?

2.1. Vis-à-vis private autonomy, research will be conducted into life decisions, organ transplantation, clinical trials, the legal status of stem cells as well as the commercialisation of human bodily material. Research into suicide will also make links issues to property law and insurance law. The core question will be which fair balance may be found between the right to self-determination and the rights of others (e.g. organ recipient) and the general interest.

2.2. Regarding the extent of private autonomy, research will be conducted into the legal aspects of a last will (testament or other).

3. Does mutual influence exist between personality rights and family law?

3.1. To what extent do personality rights give rise to the individualisation of family law?

3.2. Whether, and if so to what extent, can the acquired autonomy be used to create familial relationships. The rise of family governance ensures that this is important both for traditional as well as non-traditional family forms.

3.3. Which family law restrictions can be introduced on individual personality rights, such as the spousal obligation of fidelity, the obligation to cohabit or the temporary restraining order for domestic violence offenders?

4. What is the personal, temporal and geographical scope of personality rights?

4.1. To what extent do personality rights, either in fact or in law, restrict certain categories of persons? For example, the right for minors or detained persons to terminate their own lives, or of the exercise of personality rights by incapacitated adults or minors without the capability to reach sound judgments.

4.2. To what extent can personality rights can also be attributed to legal persons in the strict sense, other forms of company, factual associations and groups (e.g. a family, or a minority).

4.3. What is the legal status of unborn human life?

4.4. What is the fate of personality rights after the death of the legal subject, e.g. with regard to organ transplants? Which are the rights of family members in this regard, e.g. information rights in case of euthanasia of a parent?

4.5. What is the fate of family ties created and considered valid in some countries but not in others (example of surrogacy)