Eubios Journal of Asian andInternational Bioethics
EJAIB Vol. 23 (3) May 2013www.eubios.info ISSN 1173-2571
Official Journal of the Asian Bioethics Association (ABA)
Copyright ©2013 Eubios Ethics Institute(All rights reserved, for commercial reproductions).

Contents

page

Editorial: Cross cultural bioethics discourse
69- Darryl Macer
Living with a Misunderstood Disease: Myalgic
Encephalomyelitis / Chronic Fatigue Syndromein Japan70- Miwako Hosoda
Right to Abortion under International Law
72- Stellina Jolly
Is Non-procreation the Solution to Human Suffering? 77-Karori Mbugua
What are the real qualifycations of professionals?
Consideration from the Point of View of the Patients in
the Practice of Rehabilitation Medicine in Japan80- Katsuaki Yamano
Right without Choice and the Future of Bioethics
Discourse in Post-Colonial Society
83-Dr. Abdul Wahab Suri The Current State of Surrogacy
in Thailand and the Ethical Assessment of Dr. Somboon
Kunathikom – A Study of Thai Reproductive Medicine(Surrogacy) Ethics, by Means of a Three-Layer
Structural Analysis
93-Masayuki Kodama
ABA membership
100
Editorial address:
Prof. Darryl Macer, Director, Eubios Ethics Institute,
c/o Center for Ethics of Science and Technology,
Chulalongkorn University, Faculty of Arts, Chulalongkorn
University, Bangkok 10330, Thailand
Email: darryl@eubios.info

Editorial: Cross-cultural bioethics discourse
This May 2013 issue of EJAIB includes further papers
from the Sixth Joint UNESCO-Kumamoto University
Bioethics Roundtable, held in December 2012. The 2013
roundtable will be held 7-9 December 2013, as a joint
UNU-IAS and University of Kumamoto Bioethics
Roundtable, following my departure from UNESCO
Bangkok.
From 8-10 May there was a joint UNUKumamoto University Workshop on Finding Future
Visions of our World: A Sustainable Japan and the World---Dialogue Methodology for Social Change for A
Sustainable Future at UNU-IAS in Yokohama, Japan.
The 60 participants discussed a variety of approaches toconsensus building, include a day long workshop by Drs
Amy and Arno Mindell on process work. Those readers
who are interested in the ongoing trials of peace building
and conflict resolution on difficult issues of bioethics cancontact the editor.
In this issue of EJAIB there is a paper discussing
medicalization of fatique, and Living with a
Misunderstood Disease: Myalgic Encephalomyelitis /Chronic Fatigue Syndrome in Japan, by Miwako Hosoda.
There have been failures of medical systems torecognize certain persons as sick. The condition also
has some implications for the way our society makes
people too tired.
Two papers discussing controversial topics to which
there are many sides to debate are, Right to Abortion
under International Law by Stellina Jolly, and Is Nonprocreation the Solution to Human Suffering? which is ananalysis of David Benatar’s book by Karori Mbugua.
The real qualification of professionals in rehabilitation
medicine in Japan, that gain people’s trust, is discussed
by Katsuaki Yamano. Empathy to help persons comeback to real life was praised as a reason for building turst
between patients and doctors.
Abdul Wahab Suri discusses the Right without Choice
and the Future of Bioethics Discourse in Post-Colonial
Society, in the case of Pakistan. Masayuki Kodama
reviews the state of Surrogacy in Thailand and work of
Dr. Somboon Kunathikom by Means of a Three-Layer
Structural Analysis. There will be further papers on crosscultural themes in the next issue.
We need more submissions for the ABC and APSAFE
conferences, which is a convenient trip for those comingfrom overseas, being 19-23 November in Chennai, and27-30 November in Bangkok. Both will be significant
gatherings of researchers and policy makers, and pleasecheck the websites for conference details.
14th Asian Bioethics Conference (ABC14), 19-23 November,
Loyola College, Chennai, India, with Asian Bioethics
Association (ABA). Contact: selvam.mariadoss@gmail.com
APSAFE1- The First International Conference of the AsiaPacific Society for Agricultural and Food Ethics: "Food
Safety and Security for the Twenty-first Century", 28-30
Nov., 2013. Chulalongkorn University, Bangkok, Thailand. See
website http://www.apsafe2013.org/– Darryl Macer

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Eubios Journal of Asian and International Bioethics 23 (May 2013)

Living with a Misunderstood
Disease: Myalgic
Encephalomyelitis / Chronic
Fatigue Syndrome in Japan- Miwako Hosoda, PhD
Faculty of Life Network Science, Professor, Seisa University,
Tokyo, Japan
E-mail: miwhosoda@seisa.ac.jp
miwhosoda@gmail.com

Introduction
There are 340,000 people suffering from Myalgic
Encephalomyelitis / Chronic Fatigue Syndrome (ME/CFS)in Japan, and 17 million people in the world. Despite thegreat number of people affected by the disease, there arestill uncertainties surrounding ME/CFS. Of the four million
Americans who have ME/CFS, for instance, fewer than
20% have been diagnosed. Even one is diagnosed with
ME/CFS, few medical and social service is provided,
because ME/CFS has not been considered a critical
illness or a responsible disease for severe disability.
In most cases, people are diagnosed with ME/CFS
when they feel long-term fatigue without any physicalabnormalities recognized by medical examinations, suchas blood test, CT, or MRI. The US Center for Disease
Control (CDC) developed this definition in 1988.
However, long-lasting fatigue is also a symptom of otherdiseases. For this reason, Post-viral fatigue syndrome(PVFS) or Chronic Fatigue and Immune Dysfunction
Syndrome （ CFIDS ） has recently been used as analternate name to distinguish it from simple fatigue.
As of today, the causes of ME/CFS have not been
identified, and no specific diagnostic tests are available.
However according to the international criteria, it is
known that people with ME/CFS are so run down that thesyndrome interferes with their lives and can make themdysfunctional at all. Furthermore, they are not justdealing with extreme fatigue but with a wide range ofother symptoms, which include sudden severe fatigue,
sleep without refreshing, muscle and joint aches withoutswelling, intense or changing patterns of headaches,sore throat, swollen lymph glands in the neck or armpits,
and memory problems/inability to concentrate.
Despite of the definition, many people including doctors
think that ME/CFS patients are only complaining theirfatigue. Even ME/CFS “specialists” adhere to the stresstheory, which suggests that great amounts of stresscause ME/CFS, and these specialists thus diagnosepatients with mood disorders or somatic disorders. As aresult, patients have been forced to overcome the illness
through their own efforts. Many patients have complained
about this situation, both in the US and Japan:“Physicians did not want to understand my physicalpain and seemed to deny my personality, which greatly
saddened me.” (Ms. A, a ME/CFS patient)“You see in this country, ME/CFS was not accepted asa legitimate illness. It was thought to be psychologicaland placed in the category of psychosomatic diseases.”(Mr. C, a ME/CFS patient)
Finding themselves without full sympathy from doctors,
family members, and acquaintances, some ME/CFS
patients have created associations to share theiremotions and experiences. They have also approachedmedical and biomedical scientists asking for further
biomedical research to discover the causes of ME/CFS
and more effective treatment options. In addition, patientsand patient groups have asked insurance andadministrative agencies, as well as politicians, for bettermedical and social services.
People with ME/CFS have refused being called “lazy”
and as having “mood disorders”. They have wanted
diagnoses to justify their physical symptoms and theirpain. This change in status from “lazy person” and/or“social deviant” to “patient” is a process that Conrad and
Snyder (1980) referred to as medicalization.
It is somehow true that medicalization provides positive
outcomes for patients. For example, people are likely to
be considered sick and to avoid criticism that they areunable to engage in expected social activities (Parsons
1951). Once the ME/CFS sufferers are provided with alegitimate reason for their physical difficulty, they could
obtain the designated treatment, which is covered byhealth insurance and the social services for the personwith disabilities. However, it will take a great effort to“medicalize” ME/CFS patients (Clark 2003). Therefore,
Dumit (2006) called ME/CFS “the illness you have to fightto get”.
A survey on the people with ME/CFSIn this manuscript, I explore the real life with a lot ofdifficulties of the people with ME/CFS by conducting aquestionnaire survey targeting them. Participants werecollected through the Japan ME/CFS Association andother ME/CFS patients. Two hundred fifty six
questionnaire sheets were distributed from March 2012
to October 2012, and 135 sheets were returned(responded rate was 53%). This survey was reviewed by
the Harvard School of Public Health and approved as an
IRB Exemption (Protocol Number 21687-101).
Half of the participants were in their 40’s and 50’s. And
7% of the participants were teenagers. 78% percent of
the participants were female. As for the marital status,
45% of the participants were non-married, while 37%
were married. 49% of the participants received university
and higher education, 22% were high school graduates,and 19% finished occupational school.
Results
Living with never-ending fatigue and pain
Almost all participants felt severe fatigue all the time;
49% of the participants felt fatigue and extreme tiredness
all the time, 31% did most of the time, and 14% about
half of the time, while only 6% suffered a little of the time.
In addition, the participants were suffering from the next
day soreness or fatigue after non-strenuous daily
activities; 61% of the participants felt next day fatigue all
the time and most of the time, 27% felt about half thetime, and seven percent did a little of the time. Exactly ahalf of the patients were bothered by severe pain orEubios Journal of Asian and International Bioethics 23 (May 2013)
aching muscles throughout the past six months, and 38%
got moderate or mild pain and aching. Because of theonset of the problems with fatigue/energy, 82% of theparticipants had symptoms caused a 50% or greater
reduction in the activity level.
Participants described their physical condition as
follows: I am living with severe pain; I want to die
because of extreme fatigue; I am afraid to die of difficultyin breathing; I will not be able to visit my primary care
physician (PCP) when my symptoms get worse; My PCP
does not see me as a patient.
Limited Healthcare and social services
Even though the ME/CFS patients have extreme
fatigue and/or pain to spend their daily life or do not extra
energy to work, they do not receive enough medical andsocial service to support them. In terms of the social
status/occupation, 29% of the participants were
unemployed. This unemployment rate is much higher
compared to the Japanese average of 7%.
The access to social services is very limited so thatpatients have been forced to stay home and isolated fromthe society. Recently, some patients started to raise their
voice to get appropriate social services to live their social
life. For example, Ms. A had negotiated with local
government officers for a mobile stretcher free-rent
service for people with disabilities and eventuallyachieved this goal. Ms. A now appeals to the national
officers to ensure that ME/CFS patients are eligible forappropriate medical and social services without being
designated as disabled.
In many cases, however, they are still unable to receive
appropriate social service. They said as follows: myactivity range is decreasing. I cannot work anymore; I
was fired. I have no money to live on; I need a helper tospend daily life, but it costs a lot; ME/CFS is notconsidered as a disease, so I cannot receive any social
services.
Expectations for social awareness
The ME/CFS patients are also suffering from stigma
and social discrimination caused by their disease. When
Ms. A visited a ME/CFS specialist three years ago, she
was told that, “you have pain because you think you havepain. Your toothache will not disappear if you just lie on
bed. If you remain in bed because of the pain, you will
not be able to sit in a chair. You have to change yourcognition. Try to think you can sit in a chair, then yourpain will disappear.” Ms. A was very disappointed to hear
this advice.
Many physicians believe that the causal factor of
ME/CFS is psychiatric, and ME/CFS patients are
sometimes diagnosed with a “somatic disorder”.
However, according to the survey, 65% of theparticipants believed that the cause of ME/CFS is aphysical problem, not a psychological or psychiatricfactor.
Participants felt that were losing their social trust due to
ME/CFS. The following statements were seen among theopen answers of the survey: I got this disease when I
was a high school student. I was so sad because myteacher and doctor did not understand my severe

71

physical condition and thought that I did not like school;
The name CFS is very stigmatized; I visited an agency
hoping to find a job, but the agent did not recognize me
as a person with a disease.
In response, people with ME/CFS have attempted toraise awareness amongst medical professionals and thegeneral public and to inform them that ME/CFS is not a
psychiatric disease but is caused by an external factor,
such as virus.
People with ME/CFS have been contesting clinicaldiagnoses and expect that biomedical research on
ME/CFS will uncover the real causal factor of ME/CFS(Crossley 2005). Importantly, the people with ME/CFS
pin their hopes not on medical research as such, but on
biomedical research.
Discussion
The survey shows that the people with ME/CFS were
suffering from many aspects of life; medical, social
welfare, and society. The sense of total isolation
sometimes makes them feel their lives are useless(Hosoda 2010b). It can be said a “structural isolation”.
They cannot work so that they lose their friends at theirworkplace. They cannot go out so that they lose theirprivate friends. They can sometimes move so that theirfamily does not understand their terrible physicalcondition. Even more, when their physical condition
allows them to try to have fun, they are blamed fordishonesty. Once they contribute to the support group
activities, people outside of the group expect them towork instead.
The association of people with ME/CFS has alreadymade a lot of activities to live through, such as translatinginternational documents and information written in
English into Japanese, screening of a documentary filmon ME/CFS, holding meetings for general public,
spreading awareness of the disease to medical
professionals, hosting lectures by specialists on ME/CFS,
advocacy to seek for social services, and schedulingpatients’ meetings. This could be said to be a strategy forthe people with ME/CFS to live and an important themeof sociology (Brown 2005, Kuhmann 2009).
Additionally, these activities would become a connector
among many stakeholders, such as government officials,
medical professionals, clinical practitioners and lab
researchers (Hosoda 2010a). Now would be the time forbioethicists and social science researchers to pay
attention to the patients in such condition. Those
researchers can also appear as a stakeholder of the
ME/CFS world.
References
Brown, P., Zavestoski, S. (2005) Social movements in Health:
An introduction, Social Movement in Health, Oxford, Blackwell,
1-16.
Clark, A. et al. (2003), Biomedicalization: Technoscientific
Transformations of Health, Illness, and U.S. Biomedicine,
American Sociological Review, Vol.68, 161-194.
Conrad, P & J W Schneider, (1980), Deviance andMedicalization: From Badness to Sickness, expanded ed,
Philadelphia: Temple University Press

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Eubios Journal of Asian and International Bioethics 23 (May 2013)

Dumit J, (2006), Illnesses you have to fight to get: Fact asforces in uncertain, emergent illness, Social Science andMedicine, 62(3), 577-9-.
Hosoda, M. (2010a) Social Movement against the revision of
the Social Health Insurance Fee for Rehabilitation Therapy, The
Japanese Journal of Health and Medical Sociology, 20(2), 6473.(Japanese)
Hosoda, M. (2010b) Hansen’s Disease Recoverers as Agentsof Change: A Case Study in Japan, Leprosy Review, 81, pp.516.
Kuhlmann E., Allsop J., and Sacs M. (2009) Professional
Governance and Public Control: A Comparison of Healthcare in
the United Kingdom and Germany, Current Sociology, 57(4),511-528.
Parsons, T., (1951), The Social System, Routledge.

dimensional view expressed by Ayn Rand. It is a serious
emotive issue bringing forth vehement moral, ethical,
social, religious, legal and human right arguments.
According to the World Health Organization (WHO),1
about 21.6 million women had unsafe abortions in 2008.
These unsafe abortions were responsible for the deaths
2of nearly 47,000 women. This paper attempts to analyse
whether there exists a legal or ethical right to abortion
under international human right law. It recapitulates andhighlights germane progresses if any within theinternational legal systems in support of abortion andprotection of women’s life and health. The paper
contends that denial of legal and safe abortion
procedures forces women to obtain unsafe traditionalabortions, threatening their life and health.

Right to Abortion underInternational Law

Abortion: Ethical and Legal Arguments
Abortion may have become easier as well as
controversial with the rapid rise in technology, but as atechnique to thwart the unwanted pregnancy it can betraced as far back as culture and civilisation ofhumankind. Writings on abortion suggest that induced
3
abortions in China dating back –to even 5000 years. A
typical case of abortion revolves around three or four
parties, pregnant women, unborn child, and society, andin some cases, father. A catenna of legal and ethicalarguments have been raised from all the sides in support
and opposition of their positions. The major support for
abortion has come from the feminist literature and4
writers.
5
The first argument is of bodily sovereignty. With regard
to abortion it is argued that bodily sovereignty dictatesthat there should not be any compulsion or force explicit
or implicit on females to become pregnant, nor to carryon her pregnancy to the complete term. The developmentof the principle of self-autonomy can be attributed to thewritings of John Stuart Mill. He conceded, ‘Over himself,
6
over his own body and mind the individual is sovereign.’
State should accept as lawful any activity unless it
causes harm to others, even if it is regarded as immoral.
But this viewpoint can be counterproductive in theabortion debate if we accept a fetus as a legal person. In
such a scenario allowing abortion will not only be immoral
but will be harmful to fetus. As an argument, the principleof bodily sovereignty has limited application today. Most
legal systems prescribe it as offence to attempt to commit- Stellina Jolly, Ph.D.
Assistant Professor, Faculty of Legal Studies,South Asian University, New Delhi, India
Email: stellinajolly@sau.ac.in

Abstract
The recent horrendous death of Savita Halappanavar in
Ireland after the doctors there refused to conduct
abortion has evoked fierce, ethical, legal and humanrights debate. The Irish government reacted swiftly withan assurance that a bill will be introduced allowing limited
abortion right to women. Women’s organisations andfeminists have long argued that the denial of access tosafe abortion is a flagrant violation of human right. This
paper tries to analyse whether there exists a right toabortion under international human rights law. It
recapitulates and highlights relevant progresses if any
within the international legal systems in support ofabortion and protection of women’s reproductive
autonomy. The paper points that denial of legal and safe
abortion procedures forces women to obtain unsafe andoften traditional methods of abortions, threatening theirlives and health. The paper tries to see how the issue ofabortion can be approached in a balanced way.
Keywords:
Abortion,
Human
Rights,Unborn,International law, Reproduction
Introduction“Abortion is a moral right—which should be left to thesole discretion of the woman involved; morally, nothingother than her wish in the matter is to be considered.
Who can conceivably have the right to dictate to her what
disposition she is to make of the functions of her body?”(Ayn Rand).
The famous quote by Ayn Rand grants a complete
prerogative to women regarding the utilization andfunctions of her body and aptly sums up the basis of aclear and strong argument in support of abortion making
one wonder if abortion was such a straight forward soleconcern of female why has it become the leading
concern of many jurisdictions. Unfortunately the concerns
surrounding abortion are far from the simple uni-

1

World Health Organisation, Unsafe Abortion: Global andRegional Estimates of the Incidence of Unsafe Abortion and
Associated Mortality in 2008, (2011) pp 1-8.
2
Op.cit., p 4
3
Eduardo Díaz Amado, Abortion Legally and politically feasible,
BIoEthica,
9/1(2009),pp.
114-123.
<http://www.scielo.org.co/scielo.php?script=sci_arttext&pid=S1
657-47022009000100011&lng=en&nrm=iso>.
accessedon 08 Jan. 2013.
4
Julie Loesch, Our Bodies, Their Lives, in Pro-life Feminism:
Different Voices ed. G. G. Sweet (Lewiston, New York: Life
Cycle Books; 1985), p 186.
5
J. Herring, Medical law and Ethics, (3rd ed., Oxford University
Press 2010) p. 270-350.
6J Mil, Liberty, (4th Edition, London: Longman, Roberts &Green, 1869), p 14.

Eubios Journal of Asian and International Bioethics 23 (May 2013)
suicide and do not accept the absolute liberty of
individual over himself.
Feminists have considered laws against abortion as a
violation of various human rights including privacy and78health. The famous case of Roe v. Wade relied on theconcept of privacy in its support for abortion. Recent
times there have been efforts to include reproductive
9
dimension albeit precisely to the right to health. The UN
Committee on Economic, Social and Cultural Rights
recognized that the right to health includes ‘the right tocontrol one’s health and body, including sexual andreproductive freedom, and the right to be free from10interference.’ Freedom to abort or access to safe
abortion can easily be included here as the absence of
which will dangerously hamper the health of women.
Abortion also has a major social dimension revealing anacute face of poverty. Vast majority of women resorting
to unsafe abortions procedure are drawn from the poorer
sections of developing nations.
Many consider it unethical to force someone to carryforward and complete her pregnancy. This becomes animperative given the fact that the primary responsibility ofa child remains with the parents and not with the state.
So once the state does not permit abortion it does not
end there and in fact it is only the beginning for parents
who has to incur huge financial, physical and emotionalburden of taking care of the chid. This dilemma has beenbrought clearly in the case of Niketa in India where theBombay High Court refused permission to abort a 2611
week fetus with a serious heart defect. Niketa and herhusband have approached the court for medicallyterminating her pregnancy when it was detected in the
24th week of her pregnancy that the child she carries
suffers from congenital heart disorder. Under the Indianlaw termination of pregnancy can be undertaken onth
12
medical grounds but not after 20 week of pregnancy.
Critics of abortion points that permitting abortion on thebasis of fetus abnormality and medical grounds depicts
the outlook of society towards disability/differently abled
13
people. They argue that what is a normal and healthy
child is a societal construction and permitting abortion on

the basis that the child in the womb does not satisfy therequirement of ‘normal’ will encourage parents to seek
more frequent abortion. But a women who desires a childand is happy with her pregnancy, but changes her
attitude on finding fetal abnormality, is not making anegative/positive statement about disability or disabled
14
people. She is just expressing her personal sovereignty
about her desires and limitations. The abortion decision
is not about disability status but about giving choices,
women should be given the freedom to choose, freedom
to abort an unwanted pregnancy. This argument has
been influenced mainly by the fact that in most of thesociety women has no control on reproductive issues likewhen to have child, spacing between children and evenrefusal to have physical intimacy with the husband.
Marital rape is not made punishable in many societies
15
including India. A pregnancy can be the result of evenmarital rape. These issues are influenced and shaped byhighly patriarchal set of political, economic and social
ideologies of society.
A major objection against abortion seems to haveoriginated from the moral view that abortion is a murderof a being or a being who has the potential to be a full
16
grown human being. The question of abortion cannot
be answered without looking into two fundamental
17
questions what is life and when does it begin?
Biologically” life” can be defined as the quality which
differentiate living being from others. The distinguishing18
features can be growth, pain, feelings, metabolism etc.
19
The momentous judicial verdict in Roe v Wade in USA
made the issue of abortion to prominence but fell short ofruling on when life begins. Religious views do not offer
20
much assistance here. Some of the scientific authorities
and treaties suggest that life begins after 14 days of21
conception. This can be discerned from the stemcell
research controversy where many legal systems havebanned embryonic stem cell research after 14 days of
22
conception. The question in such cases will be whether
to disallow all abortion after 14 days of conception to be
14

Op.cit., p 152
Indian penal Code Art 375 Art 375, Exception.—Sexualintercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape
16
F. J. Beckwith, Defending Life: A Moral and Legal Case
Against Abortion Rights, (Cambridge University Press, 2007)
p236.
17
Op.cit., p 236.
18
Merriam-Webster's collegiate dictionary (11th ed 2005).
Springfield, MA: Merriam-Webster.
19
See note 13, Roe
20
J.J Lipner, The Classical Hindu View on Abortion and theMoral Status of the unbom, Hindu Ethics: Puriry, Ahortion andEuthanasia. Ed. H G. Coward, J J.
Lipner, Katherine K.
Young, (Albany: State University of New York Press, 1989) p
43. Demirel, Serdar, Abortion from an Islamic Ethical Point ofView. International Journal of Business and Social Science, 2(1) 2011), p. 230-237.
21
E.Chemerinsky, ‘Rationalising the Abortion Debate Legal
Rheotoric and the Abortion Controversy, ‘Buffalo Law Review,
Vol 31, 1982, p 107-164.
22
Michael Ruse, Christopher A. Pynes, The Stem Cell
Controversy: Debating the Issues (Prometheus Books, 2006),
p 117.
15

7

R. Tong, Feminist Approaches to Bioethics: Theoretical
Reflections and Practical Applications (Boulder, Colarado
Westview Press 1997) p 152.
8410 U.S 113(1973).
9
A Rahman & R.l Pine, An International Human Right toReproductive Health Care, 1 Health and Human Rights, 1(1995), p 405-418.
10
Committee on Economic, Social and Cultural Rights, General
Comment 14, The right to the highest attainable standard ofhealth(Twenty-second
session,2000),U.N.
Doc.
E/C.12/2000/4 (2000), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 85 (2003).
11
S. Kher. Niketa's Miscarriage Brings Back Focus on Legal
Cut off for Abortion. Indian Express 2008 Aug 15 (online
edition) Available from: http://www.expressindia.com/latestnews/Niketas-miscarriage-brings-focus-back-on-legal-cutoff-forabortion/349199 accessed Dec 15 2012.
12
Medical Termination of Pregnancy Act 1971, India.
13
N Madhiwalla, “The Niketa Mehta Case: Does the Right toAbortion Threaten Disability Rights?”Indian Journal Of medical
Ethics, 5/4 Oct-Dec 2008, pp 152-153.

73

74

Eubios Journal of Asian and International Bioethics 23 (May 2013)illegal. Such rule does not have much practicalapplication as it almost amount to blanket prohibition. In
most cases people become aware of pregnancy only
after 14 days. Here the important consideration can be23
on the meaning of life and value of life. In case ofcomplications at the time of delivery medical practitioners
and society gives priority to the life of mother over theunborn. Dworkin can be of assistance when he argues
whether abortion is against the interest of fetus must
depend on whether the fetus has interests at the time
abortion is performed and not whether interests will24
develop if abortion takes place.
Those who oppose abortion also point out that a
women’s psychological state undergoes tremendous
change before, during and after pregnancy. Women whowant an abortion may change her opinion and evenregret the decision when she will develop an attachmentwith the baby. This happens even in the case of
surrogate mother, as revealed in the famous Baby M
25case. But on the other hand it may be countered byarguing that should a question of magnitude like abortion
be left to a possible uncertain change of mind. What if
mother eventually does not develop that feelingness oflove and affection with the new born. The arguments andcounter points amply prove the inherent and intrinsic
difficulty associated with the issue.
Is abortion a human right under international law?
International law list out treaties, customs, generalprinciples of law recognised by civilised nations andjudicial decisions as the sources of international law. For
abortion to qualify as a legal and human right it has tosatisfy the test and requirement of any of these sources.
To analyse the legal position of abortion underinternational treaties or declarations it is imperative tohave a look at the various human right documents. The
modern human right is said to have made a beginning
after the Second World War. The atrocities and grosshuman sufferings witnessed during the war led to therealisation that protection and preservation of rights are
absolutely essential for the dignity of human being. The
robust effort got culminated with the Universal
Declaration of Human Rights (UDHR) in 1948,
26
considered as the magna carta of human rights. Right
to abortion does not find a mention in the entire
document. Article 12 of the UDHR, provides that noone shall be subjected to arbitrary interference with his
27
privacy, family, home, or correspondence. Article 25 of
the UDHR states that motherhood and childhood are28
entitled to special care and assistance. It is been
23

R. M. Baird ,S. E. Rosenbaum, ed., The Ethics of Abortion :rd
Pro-Life Vs. Pro-Choice Contemporary Issues ( 3edPrometheus Books, New York, 2011) p 236..
24
R Dworkin, ’Life's Dominion: An Argument About Abortion,
Euthanasia, and Individual Freedom, ‘Campbell CS.Camb Q
Health Ethics. 3/2 (1994).pp.303-6.
25
In Re Baby M, 537 A.2d 1227 (N.J. 1988).
26
Universal Declaration of Human Rights, G.A. Res. 217A (III),
U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810, 1948., Article
25.1 of the Universal Declaration of Human Rights affirms.
27
Op. cit., Art X11
28
Op. cit., Art XXV

asserted that these rights especially privacy can be
29
interpreted to include right to abortion. The argument
follows mainly on the line that the since the declaration
does not define the contours of privacy and other rights.
Abortion is a personal issue and hence a private matter.
The declaration is worded in a gender neutral manner.
This was understandable given the fact that women’saffairs started gaining attention only in the 1960s after
critical legal studies thinkers highlighted the social,political, economic and legal discrimination faced by
women across the globe.
Women’s issues gained a major boost with the
adoption of convention on elimination of all discrimination
against women (CEDAW) described as an international
30
bill of rights for women in 1979. The Convention affirms
31
women's right to reproductive choice. The biologicalfeatures of reproduction and division of labour where
women are entrusted with the primary responsibility ofrearing and caring for children places women at thecenter stage of reproduction. The right to abortion as asubset of reproductive rights got further enshrined in the1975 UN International Women's Year Conference in
32
Cairo. On abortion, the Cairo document states that
‘Governments should take appropriate steps to help
women avoid abortion, which in no case should be
33
promoted as a method of family planning.’ It also statedthat ‘where abortion is not against the law, such abortion
should be safe’ it affirms that ‘Any measures or changes
related to abortion within the health system can only be
determined at the national or local level according to the34
national legislative process.’ It is to be noted that noneof these declarations pertaining to women impose an
obligation on states to legalise and legislate on abortion.
To complicate the matter further, even if abortion is readas part of reproductive rights which is a recognised
human right, many of these conventions and declarations
fall under the category of soft laws meaning they are not35
enforceable.
Regarding abortion there exists no global convention ortreaties which explicitly recognise the right to abortion.
When most of these documents were negotiated, manynations had legislation outlawing abortion and they29

D. Shaw, Abortion and Human Rights, Best Practice &Research Clinical Obstetrics and Gynaecology, Vol. 24 (2010),
p 633-646
30
Convention on the Elimination of All Forms of Discrimination
against Women, adopted Dec. 18, 1979, art. 1, G.A. Res.
34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N.
Doc. A/34/46 (1979) (entered into force Sept. 3, 1981)[hereinafter CEDAW].
31
Op. cit., Art 14.
32
Programme of Action of the International Conference on
Population and Development, Cairo, Egypt, 5-13 September
1994, para. 8.25, U.N. Doc.A/CONF.171/13/Rev.1 (1995)[hereinafter ICPD Programme of Action].
33
Op.Cit., ICPD Programme of Action 8.25.
34
Op.Cit., ICPD Programme of Action 8.25.
35
K. W. Abbott, D Snidal ‘Hard and Soft Law, in International
Governance,’ International Organization, Vol. 54 (2000), p 421
Soft laws are forms of legalization that is, various combinationsof reduced precision, less stringent obligation, and weakerdelegation

Eubios Journal of Asian and International Bioethics 23 (May 2013)36

intended to leave those laws unaffected
What isnoticeable is that there is a constant endeavour toelevate abortion to the level of human right Firstly it wasdone through multitude of feminist writings making a casefor implied human right to abortion derived from right tolife and health. According to Zampas and Gher,“women’s right to abortion is bolstered by the broad
constellation of human rights that support it, such as therights to privacy, liberty, physical integrity and non37
discrimination.
Secondly human rights compliancecommittees of various conventions has been advocating
and interpreting convention provisions to include right to38
abortion. At the other end of spectrum, states also tried
to avoid the liberal approach towards abortion by
invoking reservation as they accede to the conventions.
For instance CEDAW Convention permits reservations,which are not incompatible with the object and purpose of
the convention. Monaco and Malta made specific39
reservations on abortion and reproductive rights.
With respect to abortion, there is definitely a move toliberalise abortion across the jurisdictions but it cannot betaken as a clear indication for the formation of a custom.
The approach of the states shows a wide range fromliberal, restrictive to absolute prohibition. In the case of40
Roe vs. Wade The Court ruled that the state cannot
restrict a woman's right to an abortion during the firsttrimester, the state can regulate the abortion procedure
during the second trimester ‘in ways that are reasonably
related to maternal health,’ and in the third trimester,demarcating the viability of the fetus, a state can choose41
to restrict or even to proscribe abortion as it sees fit. In
India, The Medical Termination of Pregnancy Act
42
provides for abortion generally on medical grounds. A
similar approach is seen in other south Asian nations
including Afghanistan, Bangladesh, Bhutan, Sri lanka
43
etc. The right to abortion has never been contested
before the international court of justice. There exist somedecisions directly on the point by the European Court of36

A.P Tozzi, ‘International Law and the Right to Abortion,’ (NewYork, Catholic Family and Human Rights Institute, 2010) p 866.
37
C Zampas & J. M. Gher, Abortion as a Human Right –International and Regional Standards,’ Hum. Rts. L. Rev. 2(2008) p 252.
38
Compliance committee under CEDAW told Zimbabwe to“reappraise the law on abortion with a view to its liberalizationand decriminalization. WendyWright, CEDAWCommittee
Rulings, http://www.cwfa.org/articledisplay.asp?id=1870
39
The Principality of Monaco does not consider itself bound by
Article 16, paragraph 1 (e), to the extent that the latter can beinterpreted as forcing the legalization of abortion or sterilization.
Declarations, Reservations and Objections to CEDAW,
availableat
http://www.un.org/womenwatch/daw/cedaw/reservationscountry.htm, accessed on 4-12-2012. M A. Freeman,
Reservations to CEDAW: An Analysis for UNICEF, Discussion
Paper, Policy and Practice, New York December 2009, p31.
40
See note 8, Roe
41
Op.cit.,42
See note 12, Medical Termination of Pregnancy Act 1971.
43
R. J. Cook & B. M. Dickens, ‘International Developments in
Abortion Law:’, AM. J. PUB. HEALTH, 78, (1998), p1305–11.

75

Justice but it declared that there is no right for women to44
abortion.
Any discussion on abortion cannot be complete withoutlooking at the legal position ascribed to the unborn child.
Rights of unborn received some attention from the very
beginning of bill of right in the form Universal Declarationof Human Rights 1948 and carried further in ICCPR
1966. Both UDHR and ICCPR declare that, “Every45
human being has the inherent right to life.
Thisaffirmation is not qualified as to age or limited to the born,and it would be difficult to understand them as notincluding the living but- not-yet-born. The interest ofunborn got specific prominence with the adoption of46
Convention on the rights of the child (CRC). During thenegotiations leading to CRC the representative of Italy
observed that no State was manifestly opposed to theprinciples contained in the Declaration of the Rights of
the Child and, therefore, according to the Vienna
Convention on the Law of Treaties, the rule regarding theprotection of life before birth could be considered as "juscogens" since it formed part of the common conscience47of members of the international community. For thefurtherance of their arguments support has been soughtfrom the rule which requires execution to be postponed
till the delivery in case of pregnant women. In comparison
existing human rights documents and declarations clearlyshows a preference for the protection of unborn and48
hence pro life over right to abortion. They add up to a
decided preference for life, even in provisions where
unborn children are not mentioned directly but are49
inevitably among the beneficiaries.
Discussion
The survey of legal and human right documentssuggests that the right to abortion is not mentioned as ahuman right under international law. In the absence ofclear cut explicit right recognising right to female
autonomy of abortion it is imperative that a balanced
interpretation is the need of the hour if we have to avoid
most unfortunate situation like that of Savita and protect
the health of millions of other women. Any discourse on
abortion needs to bear in mind that society is dynamic innature. Changing times and situations may require
alterations, modifications and even creation of new
perspectives and laws in society.

44

A, B and C v Ireland [2010] ECHR 2032
See note 26 UDHR & ICCPR.
46
Convention on the Rights of the Child, adopted Nov. 20,
1989, G.A. Res. 44/25, annex, U.N. GAOR, 44th Sess., Supp.
No. 49, at 166, UN Doc. A/44/49 (1989), reprinted in 28 I.L.M.
1448 (entered into force Sept. 2, 1990).
47
S Detrick, The United Nations Convention on the Rights of
the Child, A Guide to the "Travaux Préparatoires", (Dordrecht:
Martinus Nijhoff Publishers, 1992), p 109.
48
B.K.Rothman, Redefining Abortion, Ethics in Practice, ed H.
LaFollette. M Blackwell, (1997), p103-111, P Lee, Abortion andthe Unborn life, (Washington, Catholic University of America
Press, 2010), p7.
49
P J. Flood, Does International Law Protect the Unborn Child?,
available at http://www.uffl.org/vol16/flood06.pdf,accessed on 312-2012.
45

76

Eubios Journal of Asian and International Bioethics 23 (May 2013)

To make any progress in the abortion dilemma, thedebate about abortion should not be considered as an
issue where the interest and rights of unborn comes inconflicts with that of mother. Generally the issue ofabortion is based on certain pre-assumptions: in the first
position, the premise is that life is the most importantvalue while in the second it is freedom. The debate
should not be about whose rights are protected underinternational human right documents. The debate should
not merely focus on the beginning of life. In the absenceof a consensus it will only lead to another controversy
whether to give priority to religious beliefs, social morals
or science. The requirement is to understand theinimitability and uniqueness of pregnancy and secondly
to reason out why a female desires abortion. Kingston
rightly points that both prochoice and pro-life group ‘often
fail to recognise the unique notion of pregnancy and50
the relationship between woman and fetus.’
When a women desires abortion, she simply expresses
what she wants about herself and how much suffering
she can undergo as a human being. This may be due to
medical grounds or non-medical grounds. Most of thejurisdiction that permits restricted right to abortion,
usually confines the grounds of abortion to medical
reasons. Owing to fact that the society and its structure
have undergone considerable change. Women may
desire abortion not merely on health grounds.
• The family may not be financially secure to look foran additional member. This is important in many of thedeveloping nations as the primary responsibility of taking
care of the children remains with the parents. In addition
most of these societies the accessible, affordable
contraceptives and family planning may not be available.
Adding to it religious believes many times stand in the51
way of family planning.
• Live–in relationships are on the rise and any young
women find themselves pregnant before entering into
matrimony and don’t have the means to raise andsupport a child.
Society has to respond to these situations in a practicalway. To argue that these grounds are flimsy and it cannot
be morally sustained may not be the most desirable. Any
discussion on abortion needs to keep in mind that it is not
simply an issue of ethics but one with significant practicalconsequences. Everyday doctors and women have to
make practical decisions regarding abortion that involve
not only socio-political institutions but also and legal
52
rules. We need to “remember” that practical problems
have to be solved not only by appealing to ethicalarguments, but also by implementing political actions and53
stating legal boundaries. This may not be the mostdesirable situation, but all arguments against abortion

50

Op.cit.,V.O.Otiode, F.Oronsaye.et.all, ‘Why Nigerians Adolescentsseek Abortion than Contraceptives, Evidence From Focus
Group Discussions, ‘International Family Planning Perspective,
27(2) (2001), p77-81.
52
See note 3 Amado, Abortion, p116.
53
Op.Cit.,51

cannot ignore the very facts and data presented by
54
various world bodies on unsafe abortion.
The paper while arguing for liberalised abortion rule
does not advocate a stand that gives women absoluteliberty over abortion choices, or even claim that right toabortion is a human right or argue for its interpretation asa human right. This paper considers it as a practicalproblem for the society to react and respond to in apractical way. In many of the societal issues ranging fromprostitution and homosexuality etc., legal systems have
responded in a pragmatic way even though these arecore moral issues with significant societal implications. A
practical approach to abortion is already discernible fromthe fact that most of the jurisdictions give reproductive
choice to women on medical grounds as well as where
the pregnancy is a result of sexual assault. In such
scenarios, society already exhibits a tolerance andpreference for the interests of women over the interestsof unborn.
This paper argues for a more liberalised look atabortion. In the first and second trimester women should
be given the absolute liberty to decide about abortion.
It is the woman who must decide whether her relationshipwith the fetus is so valuable enough that she really wants
55
to see it developing it.
Provisions for multiple
counselling can be introduced so that the demand forabortion is not made in a fit of emotion. In addition
counselling will also help to understand whether thedemand for abortion is not under any pressure or
coercion. This liberal approach will be reflective of thechanging requirements and realities of society. In thethird semester in the eventuality of any detection ofserious medical grounds abortion can be allowed looking
at the viability of fetus. If scientific opinion and technology
makes the independent existence of the fetus outside
womb possible then I do not think abortion in the latestage should not be allowed. A separate body consistingof judicial and scientific experts can be set up and theyshould have the exclusive jurisdiction to hear any plea
regarding abortion in third semesters. The focus should
be on the viability of fetus and note on the beginning oflife. When medical and technological progress enables
the survival of fetus outside the womb even in earlier
stage of pregnancy abortion should not be permitted. The
need is to look at abortion as a dynamic issue.
Conclusions
To conclude any approach to this conflicting issue
should bear in mind that right to life qualifies as thesupreme right and encompasses all other rights. Both
women and unborn fetus have a genuine claim to right tolife. But when both their interests appear to be in conflictwith each other it is the paramount consideration of thepolicy makers to keep in mind certain fundamental
principles. There is no confusion regarding the sanctity
and certainty of a mother’s life. But there appears
different religious and scientific version regarding the
beginning and existence of life in the womb. Michael
Meslin has shown that 'the concept of person is one of
54
55

See note 1 WHO., Unsafe Abortion, p 3.
See note 7 Tong, Feminist Approaches, p 152.

Eubios Journal of Asian and International Bioethics 23 (May 2013)56

the most difficult concepts to define. There is noagreement in science or philosophy about when
personhood begins, or where it ends, or how it should be
defined. This should act as the guiding factor for states tofollow a policy that gives priority to women’s decision toabortion as an unwanted pregnancy changes the entire
course of her life.

Is Non-procreation the
Solution to Human
Suffering?
-Karori Mbugua, PhD.
Department of Philosophy, University of Nairobi, Kenya
Email: Karori.mbugua@uonbi.ac.ke

Abstract
In his controversial book titled Better Never to Have
Been, the South African philosopher David Benatar
advances the thesis that creating people seriously harms
them. To ensure that no more people are harmed, hecalls for the extinction of the human species through nonprocreation. In this paper, I will argue that although those
who exist suffer harm, existence in itself does not cause
harm. Consequently, even if we grant that Benatar isright about the harms that characterize all conscious
existence, eradicating the human race by ceasing toprocreate is not a morally acceptable way of getting rid of
these harms. A more realistic way of resolving thisproblem is to try to make the world a better place so thatno more people are harmed. I further argue that contrary
to what Benatar would have us believe, the degree ofhuman suffering is not so great as to make non-existencea preferable option. Furthermore, there is evidence tosuggest that life is getting better in most societies.
Nevertheless, I conclude that Benatar is to becommended for challenging us to rethink the ethics ofprocreation
Introduction
In his controversial book, Better Never to Have Been,
Benatar defends the thesis that every person is gravely
harmed by being brought into existence. He further
argues that we have a moral duty not to procreate andrecommends that the human species should be phasedout of existence as soon as possible so that no more
people are harmed.
By advancing and defending unpopular and counterintuitive views, Benatar has ruffled the feathers of a great
many people both within and outside the philosophicalcommunity as evidenced by the many articles andreviews in philosophical journals, and commentaries on
web logs and YouTube. Sami Pihlström, for example, hasargued that Benatar’s ideas are too dangerous and56

M Meslin, Religious traditions and the Human Person,
Concepts of Person in Religion and Thought, H G. Kippenberg,
Y B. Kuiper, and Ay F. Sanders eds., (Berlin: Mouton de
Gruyter, 1990), p67.

77

culturally harmful to be discussed philosophically(Philström 2009). Yujin Nagasawa reaches a similar
conclusion when he says that Benatar’s claims ‘aredreadful and possibly dangerous’ (Nagasawa 2008, 675).
I will begin by giving a summary of Benatar’s two mainarguments for antinatalism: namely, the formal and thematerial arguments. I will then show that Benatar fails toclearly distinguish between existence (which in itself is
not bad) and the harm that those who exist suffer. I
further argue that he has grossly exaggerated the harmsthat characterize existence. Given the insurmountabledifficulties that the implementation of Benatar’s antiprocreation policy would face, I argue that the most
realistic way of ensuring that humanity does not continue
to suffer is to seek to eliminate the cause of suffering
itself and not to extinguish the human species. I believethat this is possible because we already have evidence
suggesting that life is getting better and people arehappier.
The case against conscious human existence
Benatar has two independent but complimentaryarguments for antinatalism: the formal and the material
argument. Whereas the former, which is commonlyreferred to as the asymmetry argument, uses logic todemonstrate that creating people harms them, the latterlargely appeals to empirical evidence to demonstrate that
our lives are very bad and were therefore not worth
creating.
Most critics of Benatar have focused on the formal
argument, which is found in the first chapter of his book.
This argument proceeds from the following two premises,
which are asymmetrical:• The absence of pain is good even if that good is not
enjoyed by anyone.
• The absence of pleasure is not bad unless there issomebody for whom this pleasure is a deprivation(Benatar 2006, 30).
Benatar’s point is that pain is intrinsically bad but there
is nothing bad about the absence of pleasure so long as
no-one is deprived of it. Given this asymmetry andconsidering that human existence entails harm while nonexistence does not, Benatar draws the nihilistic
conclusion that it is better not to exist. As he forcefully
puts it ‘…the avoidance of the bad by never existing is areal advantage over existence, whereas the loss ofcertain goods by not existing is not a real advantage over
never-existing’ (Benatar 2006, 14).
Benatar further argues that all suffering, however small(including a pin-prick), is sufficient to make coming into
existence undesirable. It is useful to point out at theoutset that Benatar is not claiming that the non-existent
are better off. To say so would be to attribute a property
to a non-existent thing. All what he is saying is thatcoming into existence is harms those who come into
existence (Benatar 2006, 4)
The second argument for anti-natalism that Benatar
proposes is the material argument, Here Benatar seeks
to show that even the best lives are very bad andalthough some are worth continuing, no life is worth
starting in the first place. He appeals to three

78

Eubios Journal of Asian and International Bioethics 23 (May 2013)

psychological theories to explain why people tend toover-estimate the good in their lives. The first is
Polyannaism, which states that humans are predisposedto optimism and tend to remember the good things intheir lives and repress bad memories. The second theoryis adaptation, which is the capacity to adjust to newexperiences and adopt new behaviors. The third is thesocial comparison theory, which is the tendency to focus
on comparative rather than an actual self-assessment ofwell-being (Benatar 2006; 65-68). He suggests that these
psychological traits may have been favored by Darwinian
selection because they helped militate against suicide
and hence promoted the survival of the species. Benatar
goes on to give a catalogue of miseries to demonstrate
the magnitude of harm in the world. These include illhealth, hunger, anxiety and death that are caused bydisease and wars and natural calamities such as
earthquakes, volcano eruptions and flooding. He
maintains that all humans will experience at least one ofthese harms in their lives, which means that theprobability of exposure to harm is certain.
From the two arguments Benatar has drawn a numberof conclusions. The first one is that since humanexistence entails harm and this harm is more severe thanmost people realize, procreation is always immoral. He
maintains that not only do we have no moral duty
procreate; we have a moral duty not to procreate.
According to this view, sex can only be morally
acceptable if it is not reproductive.
A second consequence of Benatar’s argument is theassertion that pregnant women have a moral duty toabort during the early days of gestation. His justification
for this is that during the early stages of gestation a fetus
will not yet have come into existence in the morally
relevant sense.
Even more disturbing is Benatar’s recommendation thatthe human species should be extinguished. He thinksthat the best way to achieve this goal is not by massmurder or suicide but through non-procreation. And sincecoitus is possible without
bringing anybody into
existence, he maintains that non-procreation need notcome at the expense of frustrating coital needs. But hecautions that such a moral duty should not lead to theabolition of legal procreative rights because of theimmense harm the enforcement of such a law would
bring to those who already exist.
It is important to point out at the outset that Benatar is
not saying that those who don’t exist are better-off thanthose who exist. The non-existent ‘are not’ and cannot
therefore be benefited or harmed by our actions. What
he simply means is that coming into existence is bad for
those who come into existence and it is preferable if they
never existed at all (Benatar 2006: 4).
An interesting twist in Benatar’s anti-natalist argument
is that whereas coming into existence harms the“exister”, once a life is started it would be worth
continuing because terminating it would prevent theperson from having future goods. This in essence meansthat decisions about the creation of life and decisions
about its continuance must be handled differently.
Weird, as they may sound, Benatar’s anti-natalist views
are not entirely new. As he has pointed out, a number ofpeople throughout history have alluded to or explicitly
expressed similar anti-natalist views. These include
philosopher Arthur Schopenhauer and prophets Job andJeremiah and the writer of Ecclesiastes in the Bible.
Interestingly today there exists an organization callingitself the ‘Voluntary Human Extinction Movement’ whose
agenda, as its name suggests, is the extinction of thehuman race. This movement was founded by Les Knightin 1996 and his deep convictions led him to have avasectomy at the age of 25.
However, whereas Benatar’s antinatalism is primarily
motivated by the desire to save mankind from avoidable
and needless suffering, Knight’s motivation is to preventthe further degradation of the environment. For Knight,
eradicating the human race is the panacea to theenvironmental problems besetting the world today. As heforcefully puts it: “If you haven’t given voluntary humanextinction much thought before, the idea of a world withno people in it may seem strange. But, if you have given
it a chance, I think you might agree that the extinction of
Homo sapiens would mean survival for million, if notbillions, of Earth-dwelling species…..Phasing out thehuman race will solve every problem on earth, social andenvironmental” (Knight 1991, 72).
Another writer who shares Benatar’s views is Jimmy
Crawford. As he puts it, “as far as philosophies go, mineis pretty and dry. I simply believe that human beings
should stop breeding and let the race die out throughattrition” (Crawford 2011, 13). Indeed, he believes thatanti-natalism is a logical extension of normative humansensibilities and any person with some degree of
empathy for the suffering of others would agree with him.
Is life really that bad?
The problem with Benatar is his tendency to
exaggerate the enormity of the harm that accompanies
existence. He does this in his second argument where hegives a catalogue of the sufferings that those who exist
undergo. The truth of the matter is that although no life iswithout its own challenges, most lives are reasonably
good and devoid of intolerable suffering. That is why
once started, as Benatar acknowledges, most lives areworth continuing.
But if most lives once created are worth continuing, asLen Doyle has rightly pointed out, one could as well takethe risk of bringing forth a child with the hope that its life
will turn out to be worth continuing (Doyle 2007: 474575). If all lives are very bad, as Benatar seems tosuggest, then all lives would be wrongful lives and ourcourts would be inundated with wrongful life cases. The
fact that we are able to distinguish between wrongful
lives and normal lives is a clear indication that most lives
are not as bad as Benatar would have us believe.
Furthermore, some lives may be worth starting eventhough this may predispose to harm the being whose life
is. Take the life of Nelson Mandela, the anti-apartheid
icon, as an example. We certainly can say that eventhough his life was characterized by pain and suffering,
the world would be worse of today had Mandela notcome into existence. His life is therefore not only worth
continuing (his death would cause pain to many) but wasalso worth starting in the first place. The same can beEubios Journal of Asian and International Bioethics 23 (May 2013)
said of the many heroes and heroines who sacrifice theirlives in order to make this world a better place, not tomention the many scientists, inventors and poets who
have made discoveries, invented gadgets and written
poems, all of which have made our lives better than they
otherwise would have been.
What Benatar fails to realize is that some pleasures
may outweigh any possible harm. A good example is thepain that a mother undergoes during labor and theoverwhelming joy and happiness that follows the birth of
the baby. Pain may also be necessary and beneficial forthe achievement of other values. As the saying goes‘there is no gain without pain’. Without pain we would
never know when our bodies are in trouble. Indeed, even
if the non-existent are not deprived the joys of existence,
conscious existence is an experience that those who
already exist rarely regret. Furthermore, even if existenceis always characterized by harms, these harms aretemporary since all lives end in death. One could
therefore argue that it is better to have lived and sufferedrather than to have failed to exist at all.
Benatar’s attempt to bolster his antinatalist thesis in the
final chapter of his book by showing that it is compatible
with religion, and especially Christianity, is not
successful. Whereas it is true that at one point in theirlives prophets Job and Jeremiah lamented their coming
into existence, their lives are not representative of mostpeoples’ lives. The truth of the matter is that the twoprophets’ lives were characterized by immense suffering
but most of us enjoy worthwhile lives. It is also useful tonote that in the Bible man is the highest achievement ofGod’s creation and is commanded to be fruitful andmultiply. The concept of life after death is also testimony
to the reverence that most religions have for human life.
For most religions, death is not the end of life but the
beginning of another life. It should therefore be no
surprise that religious people find antinatalism
unappealing.
Should humanity be phased out of existence?
Benatar’s suggestion that the human existence should
be brought to an end strikes me as very odd way ofresolving a problem. Given our strong biological drive topass on our genes to the next generation, his call for theeradication of humanity is not likely to have an impact on
pro-creation as he himself acknowledges (Benatar 2006:vii). Although if implemented his anti-procreation policy
would no doubt ensure an end to all human suffering, it is
not practically implementable. It is highly unlikely that theseven billion people who currently inhabit our planet will
one day unanimously agree not to procreate. In any
case, even if they were to agree, there is no guaranteethat some of them will not break the promise. The point isthat moral philosophy cannot afford to be a mere
academic exercise; it should help us make practicalchoices regarding our lives and wellbeing.
Benatar’s argues that women have a moral duty toabort during the early days of gestation. His reasoning isthat the moral status of an embryo increases with agethth
and that before the 28 to the 30 week it is morally
acceptable to carry out an abortion. This argument will no
doubt be resisted by those who believe that the embryo

79

has a moral status, equivalent to that of an adult humanbeing from the moment of conception.
There is also a very real possibility that once we allow
women to abort during the early stages of gestation somewill be tempted to abort during the later stages. Setting
aside the question of an embryo’s moral status, Benatar
will also have to contend with question of abortion’s harm
to women. Empirical studies have consistently shownthat abortion harms women psychologically (Fergusson
et al., 2006, Mota et al., 2010). Moreover if all pregnant
women were to abort today, as Benatar suggests, thiswill greatly harm the young as there will be no-one totake care of them in their old age.
As I see it, the problem with Benatar is that he fails to
make a clear distinction between existence and harm.
Although existence predisposes one to harm, existence
is not a harm and neither does it cause harm or suffering.
Indeed, we can imagine a world in which there is nosuffering. Accordingly what humans should do, and they
have always done this with some measure of success, isto try to eliminate the causes of human suffering. Our job
should be to prevent future persons from suffering andnot to frustrate their coming into existence.
Benatar is advancing a very strange kind of
utilitarianism. He not only seeks to eliminate pain, he also
wants to ensure that those who are to suffer this pain
don’t come into existence. Eradicating the human race inorder to eliminate suffering is like burning your own
house in order to get rid of a rat. This is a very defeatistand cowardly way of resolving a problem. The best way
to deal with such a problem is to kill the rat itself and not
to burn the house. Benatar’s proposal would only makesense if life was characterized by nothing but puresuffering.
The good news is that science and technology arecontinuously improving the quality of human life.
Advances in the field of obstetrics and gynecology, forexample, have reduced the amount of pain and sufferingthat women go through during childbirth, not to mention
the pain killers that have improved the quality of life of
those who are terminally ill.
A recent study by Ruut Veenhoven suggests over thelast ten years the quality of life in most nations has
improved. In these countries happiness and longevity
have increased (Veenhoven 2010). Instead of bringing
humanity to an end, we should continue to strive to makethe world a better place. We have done this in the past(with a measure of success) and there is no reason why
we should not continue to do it now. Of course one wayof ensuring this happens is by cutting the number ofbirths as our planet has a limited carrying capacity.
It is important to note that there already exists a
movement called transhumanism, which seeks tounderstand and evaluate the opportunities for improving
human life. Some of the enhancement possibilities being
proposed include the extension of human life through theeradication of disease, unnecessary suffering andaugmentation of human intellectual, emotional andphysical capabilities. Although these objectives may takea long time to be realized, there is no good reason tobelieve that they cannot be realized. Benatar is wrong toimagine that humanity will never be able to overcome the80

Eubios Journal of Asian and International Bioethics 23 (May 2013)

harms that accompany conscious existence. As I havejust pointed out, technology has already improved theliving standards of humans by making life easy and fast.
At the risk of being accused of ad hominem attacks, I
cannot help but wonder what has motivated Benatar toentertain such pessimistic views about human existence.
People don’t theorize in a vacuum. What has life done to
Benatar to embitter him this way? Why is he notpolyannaish like most of us? These are not idle rhetoricalquestions. A psychoanalytic study involving a follower ofthe Voluntary Extinction Movement (Vhement) mentioned
earlier revealed that the activist had a disturbed
childhood full of violence and neglect (Ormrod 2011).
And a perusal of The Confessions of an anti-natalist, by
Jimmy Crowford, an admirer of Benatar, whose work hequotes in extensa, reveals that the author’s life (i.e.
Crowford)
was characterized by joblessness, drug
abuse, and ill health (Crawford 2011).
I fear that Benatar’s anti-natalist arguments will provide
additional ammunition to the likes of Jimmy Crawford andantinatalist cults such as the Vhement group and the
Church of Euthanasia, which have been calling for theannihilation of the human species. An ethics that calls forthe eradication of all conscious life goes against ethics
itself. Ethics, as Albert Schweitzer once said, is nothing
but a “reverence for life’ (Schweitzer 1987, 309). Any
attempt to eradicate life is to be resisted.
Conclusion
In this paper I have argued that although Benatar iscorrect in saying that conscious existence is always
characterized by pain and suffering, he has grossly
exaggerated these harms. Furthermore, his suggestionthat humans should stop procreating so that no more
people are harmed is too unrealistic to be taken
seriously. A more realistic solution to this problem is to
strive to eliminate these harms. However, in spite of mycriticism of Benatar, I think he is to be commended forchallenging us to rethink the morality of procreation andparenting. There are many people who believe that they
have a moral duty to reproduce regardless of whether
they can guarantee their offspring a decent life.
Furthermore, as Benatar rightly notes, in most cases
procreation is the consequence sex rather than the resultof an informed or rational decision to bring someone onto
existence. I agree with him when he says that thewelfare/interests of future children must be taken into
account when deciding whether or not to bring them into
existence. A lot of needless suffering could be avoided if
people ensured that they only create children whom they
are able to take care of and who don’t have debilitating
diseases or inherited conditions.
References
Benatar, David. 2006. Better Not to Have Been: the Harm ofComing into Existence. Oxford: Claredon Press.
Doyle, L. 2007. “Is Human Existence Worth Its ConsequentHarm?” Journal of Medical Ethics 33(10): 573-576.
Crawford, Jim. 2010. Confessions of an Antinatalist.
Charleston: Nine-Banded-Books.
Fergusson, D. M., Horwood. I. J and Ridder, E. M. 2006.
"Abortion in Young Women and Subsequent Mental Health”,
Journal of Child Psychology and Psychiatry 47:16-24.

Mota, N., Burnett, M. and Sareen, J. 2010. “Associations
between Abortion, Mental Disorders, and Suicidal Behaviors
in a Nationally Representative Sample”. The Canadian
Journal of Psychiatry, 55 (4), 239-246.
Knight, Les U (pseudonym). 1991. "Voluntary Human
Extinction," Wild Earth, 1(2), 72.
Nagasawa, Yujin. 2008. ‘Review of David Benatar’s Better
Never to Have Been: the Harm of Coming into Existence.
Mind, 117 (July), 117:674-677.
Ormrod, James S. 2011. “Making Room for the Tigers andPolar Bears: Biography, Phantasy and Ideology in the
Voluntary Human Extinction Movement”. Psychoanalysis,
Culture and Society”, 16(2), 142-161.
Pihlström, Sami. 2009. “Ethical Unthinkabilities andPhilosophical Seriousness”. Metaphilosophy, (40) 5: 656-670.
Schweitzer, A. 1987. The Philosophy of Civilization, trans. C. T.
Campion. Amherst, New York: Prometheus Books.
Veenhoven, Runt. 2010. “Life is Getting Better: Societal
Evolution and Fit with Human Nature”. Soc. Indic Res, 97:
105-122.

What are the real qualifycations of professionals?
Consideration from the Pointof View of the Patients in the
Practice of Rehabilitation
Medicine in Japan- Katsuaki Yamano, OTR, BHS, MA
Kumamoto-ekimae Nursing and Rehabilitation College
Department of Occupational Therapy
Email: yamano0403@yahoo.co.jp
1．Introduction
Most therapists (Physical therapists, Occupational
therapists, Speech-Language-Hearing Therapists, etc. )1)
belong to many types of organization. The physiatrist
bosses the therapists in the position of general manager.
Fundamentally, therapists should evaluate, assess andmake plans for the patients as professionals. However,some of the physiatrists often fulfill a role, and prescribe
to therapists (Yamano, 2012, p.83). Most of thetherapists think they must practice therapy withcomplying prescriptions, because they are notestablished to practice in therapy without a physician’sprescription, and without direct guidance of the physician,by regulations in Japan. Thus, they have thought theprescription is an “absolute order” (Yamano, 2012, p.83).
It is able to build a relationship of trust between
physiatrists and patients. The patients are able to regard
the physiatrist as a professional. Meanwhile, from thestandpoint of view of regulation, therapist’s role is only
practicing evaluation and therapy for patient byphysiatrist’s prescription. Therefore, the therapists may
not be able to have a trusting relationship with patients. If
it is fully true, the therapists may be lying if they told theirprofession. However, from the point of view of thepatients, he or she may put their trust in therapists. The
subject in medical care must be the patients, and theyEubios Journal of Asian and International Bioethics 23 (May 2013)
must decide whether the caretakers are professionals.
The therapists may be able to build up a trusting
relationship with the patients. If they do, we will accept
that the therapists have the real qualifications ofprofessionals. The purpose of this study is to clearly
identify what the real qualifications of professionals are in
rehabilitation medicine from the point of view of thepatients.

Figure 1: The relationship of trust among thephysiatrists, the therapists and the patients
2. The preceding study
Hosoda investigated 27 patients by interviews from2000 to 2004 (Hosoda 2006). She described the resultsof interviews with two patients that met with professionals
and transfigured themselves with their progression.
Hosoda mentioned that one of the patients received ashock because the patient was explained from thephysician, “There is no hope concerning recovery from
dysfunction (Hosoda 2006, p.183). However, the patient
had a relationship with a speech therapist for four years,
and the patient answered that they were able to build
relationships with the speech-language-hearing therapist,for example, respecting each other, discuss life for the
future, and accept each other on equal grounds (Hosoda
2006, pp.323-4).
In the case of another patient, Hosoda mentioned thatthrough the meeting and relationship with the physicaltherapist, their relationship became specialized andinformal because the therapist practiced therapy over the
institution and responded individually to the patient(Hosoda 2006, pp. 325-6). Hosoda’s position is very
interesting because it is not always that the patients trust
only the physiatrists. It is beneficial to sustain her position
from the point of view of the other patients.
3. Materials and method
In this research, four writings which were written by thepatients who received rehabilitation medicine wereselected and used (Tsurumi 1998, Tada 2007, Ikenoue
2009, Hayama 2012). I (1) followed their progress fromeach of the writings, and (2) picked out the various typesof professionals who had trusting relationship with thepatients or not from them.

81

4. The four patient’s writings
4-1．Kazuko Tsurumi
Kazuko Tsurumi was a sociologist who had a left
hemiplegia with intracelebral hemorrhage in 1995 when
she was 77 years of age (Tsurumi, 1998, pp.30-1). She
was admitted into a rehabilitation hospital after twelvedays from the onset. She practiced ambulatory training
with parallel bar and was advised by a physical therapist.
Sometime later, she was at the high risk of falling
because of left equinovarus deformity grater, and she
could not use her left hand in the activities of daily living.
With all these factors, she was notified by physicaltherapists that she will not be able to become ambulatory
independent (Tsurumi, 1998, pp.57-9).
After six months from the onset, she was moved tofacility in a nursing home (Tsurumi, 1998, p.59). She got
accustomed to locomotion using a wheel chair. At thistime, she met two physiatrists, and she was received
medical attention by the physiatrists (Tsurumi, 1998,
pp.70-2). She demanded to the physiatrists that she justhave to publish my writings. They got a scent of her mind
that she believes no help at all if she ask her demand toanyone (Tsurumi, 1998, pp.123-4). The physiatrists
advanced for her to peal an apple training using her righthand only, on the ground of her remark that she had
eaten an apple every day till onset. She believed that it is
impossible. However, she was able to peal an apple
through the use of right hand only and the device as achopping block with the nail (Tsurumi, 1998, pp.124-5).
After this opportunity, she developed the trust for thephysiatrists because their advices lead her for the better.
She has actively written essays and worked continuously
after having rehabilitation medicine for two years.
4-2. Tomio Tada
Tomio Tada was an immunologist who had a righthemiplegia with a brain infarction in 2001 when he was
67 years old (Tada, 2007, pp.11-3). He had severe
dysphasia and dysarthria simultaneously (Tada, 2007,
pp.21-3). He stated rehabilitation medicine after two
weeks from the onset. Though he expected recovery ofphysical dysfunction at an early stage, did not find it for
two months.
After two months from the onset, he felt frantic
gradually. He was admitted to the hospital selected byhimself. However, he felt disappointed there about
physician’s inadequate disclosure and therapy which hadlack of evidence (Tada, 2007, pp.51-8).
After five months from onset, he moved to therehabilitation hospital (Tada, 2007, p.71). He wasimpressed by patient's approach who challenged therapy
in the physical therapy room desperately. He was able toambulate short distances by physical therapist's advice
that is very theoretical and adequate concern about theways of trunk and lower extremity movement (Tada,
2007, pp.79-81). He thought that he has another side to
him concerning being able to ambulate himself, andexpressed to himself “a giant awakening” (Tada, 2007,p.83).
He commented that the physical therapist as excellent
because the therapist has great expertise in rehabilitation

82

Eubios Journal of Asian and International Bioethics 23 (May 2013)

medicine, muscle anatomy and kinesiology (Tada, 2007,
pp.80-1).
4-3. Kanta Ikenoue
Kanta Ikenoue was a manager who had quadriplegiawith traumatic brain injury in 1999 when he was 49 years
old (Ikenoue 2009, p.2). His quadriplegia was severe andhe was in a bedridden state (Ikenoue 2009, p.12).
He stated therapy two weeks after onset (Ikenoue
2009, p.15). He was able to sit in a wheel chair withreceiving three nurses assistance (Ikenoue 2009, pp.178). He had moved to four rehabilitation hospitals within
ten months after onset.
During that time, he suffered from real situation which
did not make dysfunction recover and severe pain by
therapy, which created a sense of mistrust by physician
and therapist’s unclear disclosure. He questioned theprofession's level of conscious responsibility for patientsand the difference of technical skills among physical andoccupational
therapists(Ikenoue
2009,pp.22-7).
Nevertheless, he was able to live with hope after his
attendingphysicianlogically
explained
matters
concerning therapy for living in his home.
Eventually, he experienced the benefits of therapy andacquired personal computer skills with the aid of devices
recommended by his occupational therapist (Ikenoue
2009, pp.144-6). The rehabilitation staff discussed about
the quality of life for patients with seriousness, and hediscussed with rehabilitation staff concerning the differentof patient’s future vision between staff and him (Ikenoue
2009, pp.148-9).
Through the things, he was able to cognize his current
state and future vision, he opened up a window of themind for the staff (Ikenoue 2009, p.162). He became tohave good days because he felt that staffs are always
thinking of the patient’s future with patients (Ikenoue
2009, p.149).
4-4. Yasuaki Hayama
Yasuaki Hayama was a lecturer of accounting who had
a left hemiplegia with intracerebral hemorrhage in 2006
when he was 42 years old (Hayama 2012, p.102).
Though he was unable to ambulate, he could locomoteby wheel chair two months after the onset. Meanwhile, he
could not grasp anything by his right hand. Moreover, he
could not communicate with his family by dysarthria.
About two months after onset, he experienced being
able to cook pasta as per his occupational therapist’s
advice (Hayama 2012, p.107). Through this experience,
he has come to understand that he will be able to dosomething with his left hand only even if his right handdoes not make a recovery. He had motivation which hewanted to challenge various occupations more strongly.
He developed a feeling of respect for occupational
therapists who thought a great deal of patient’s listening,
set the environment that he wants to cook pasta, andpave the way to get back on his feet without conversation(Hayama 2012, p.107).
After three months from the onset, he was discharged
from the hospital. He could ambulate with a cane. He
went to the facility for the elderly to practice muscle
strength training and group exercise. However, hedeveloped a feeling of impatience that his body did not
make a recovery. Just then he went to a trip with his
friend. Through this trip, he has felt certain thatoccupation has been very important because dysfunction
passed from his remembrance.
A year from the onset, he became the manager of a
facility for the disabled elderly, and he has informed thechallenged elderly people and the therapists about thegood points of occupational therapy since then (Hayama
2012, pp.8-10, 102).
5. Discussion
It doesn't mean that license of the professionals who
are able to build a trusting relationship for the patientsare not specific from the writings written by the four
patients. Maybe, the patients who build and promotetrusting relationship for professionals are persons who
understand the stand of the patients and follow the same
fate as patients.
Table 1. Comparisons of the license of the professionals
concerning rehabilitation medicine whether the four
patients build trusting relationship or not based on theirwritings
Did not trust

Built trust

TsurumiPhysical therapist

Physiatrists

Tada

Physiatrist,
Occupational therapist.
Speech-LanguageHearing Therapist

Physiatrist,
Physical therapist

Ikenoue

Physiatrist,
Physical therapist
Occupational therapist

Physiatrist,
Physical therapist,
Speech-LanguageHearing Therapist

HayamaNone

Occupational therapist

It is important to consider what the real qualifications ofprofessionals are in rehabilitation medicine from the pointof view of the patients. Though time is different, four
patients felt impatience because they did not make arecovery from their dysfunction. Besides, they havefrustration because of inadequate disclosure concerninglevel of dysfunction recovery. Most of patients requestthat the professionals inform patients of professional’s
explanation and act clearly. However, if professionals
inform patients with a focus on level of dysfunction
recovery, the major focus tends to be functional
prognosis. That, of course, patient’s degree ofdysfunction recovery is different among the patients.
Besides, it is not likely to lead directly to an ability on thebasis of level of dysfunction recovery. Thus,
professional’s explanation for the patients becomes that
we can understand in time finally. If it is so, professionals
cannot obtain patients trust.

Eubios Journal of Asian and International Bioethics 23 (May 2013)
Concerning these discussions, the author practiced
focus group interviews for rehabilitation professionals,
patients and their families three years ago. As a result ofinterviews, patients and their families hope to keep good
relationships based on the trust with rehabilitation
professionals. The author considers that this idea isconfirmed from the result.
For patients, the “real qualifications” of a professional in
the practice of rehabilitation medicine is reliability andvalue. Professions who obtained the trust of these four
patient’s set realistic and applicative goals for use of not
only dysfunction but also devising their environment, forexample, experiencing personal computer, wearing
kimono, cooking pasta, and so on. Patients require a
professional who is able to explain the therapy plan
clearly and bring with them the experience thatencourages patients to make use of their potential ability
for activities of daily living. Moreover, he or she is aperson of virtue who considers the patient's present andfuture life. These qualifications are not distinct among thevarious types of license.
Note
The Physiatrist has been called the physician who has
the specialty of rehabilitation medicine. Rehabilitation
medicine is a specialized clinical medicine which follows
patients who have motor dysfunction mainly. On theother hand, medical rehabilitation stands that not only
stop worsening patient’s disease, but also notice to reachthe purpose of medicine to live independently and return
to work. Therefore, the subject of medical rehabilitation isimportant for patients of all clinical medicine.
References
Ikenoue K (2009) rihabiri no kekka to sekinin (The result andaccountability for patients in rehabilitation medicine), Miwashoten.
Tsurumi K (1998) Kaisei wo ikiru ( I live in refreshing), Fujiwarashoten.
Hosoda M (2006) Nousottyu wo ikiru imi (The means of spend
one's life as patients who have cerebral vascular disease with
dysfunction), Seikaisya.
Tada T (2007) kamokunaru kyojin (The Silent Giant). syueisya.
Hayama H(2012）dakara sagyouryouhou ga daisukidesu ( So,I like occupational therapy very much), Miwa-shoten.
Yamano K(2012) Consideration of issues concerning“Physician’s Prescriptions” in the Practice of Occupational
Therapy in Japan. EJAIB 22 (2), pp.82-5.

Right without Choice and the
Future of Bioethics
Discourse in Post-Colonial
Society-Dr. Abdul Wahab Suri
Assistant. Professor
Department of Philosophy, University of Karachi,
Pakistan
Email: wahabsuri@gmail.com

83

Abstract
The future bioethics paradigm of post-colonial underdeveloped societies like Pakistan oscillates between
right-based-health-care and aetiological medicalization oflife-world. The contemporary discourse of bioethics
presumes a delicate distinction between right-basedhealth-care and institutionally determined medicalizationof life-world.
The former considers the health care as a fundamental
right of an individual, whereas the later emerges from theinstitutionalization of scientific methodological studies i.e.
a never ending process of excavating the causes of
diseases and reasons of their spread, which is the resultof the compartmentalization of knowledge to actualize
modern dream of transcendental standard of ideal humanlife.
In this paper both paradigms of bioethics will be
evaluated critically with reference to healthcare. It will beargued that both these bioethics paradigms provide a
passive resistance to the moral foundations of traditionalsocieties. They also have a potential to disintegrate
communal particularities of such communities. The paper
will be divided into two sections. In the first section it will
be argued that right-based health care paradigm
presumes an antagonistic relation with local moral
foundations which are rested upon the priority of Good
over right. In the second section we will argue that
medicalization of life-world either determined by state
apparatus or by market driven mechanism will eventuallyfacilitate the process of modern discursive practices.
In the conclusion we will try to establish that bothparadigms are complementary to each other and theinstitutionalization of right-based-health care is directly
proportional to the positivistic scienticization of traditional
life-world.
Section 1: Post-colonial bio-ethical discourse andthe trajectory of irony
The Contemporary bio-ethical issues prevailing in postcolonial societies like Pakistan cannot be understood
without contextualizing these issues in the gradualprocessofprogressanddevelopment.
This
technologically driven transformation of the life worldfrom pre-scientific traditional life to modern scientificways of living is being under way, institutionalized andidealized. The process of modernization is not only
defining the traditional, pre-industrial culture as irrationaland claimed to rested upon arbitrary backward
authoritative mechanisms but most importantly it alsoquestions the legitimacy of the values and theircorresponding belief structures i.e. religious-cumtraditional value system as an obstacle in the realizationof scientific enlightenment. The gradual revaluation andcultural transformation is presumed to be theunconditional imperative of the age “the only remaining
alternative is that of intelligent, voluntary acceptance of57
the industrial ways of life and values that go with it”.

57

Ayers C.E., “The Theory of economic progress”: A study ofthe fundamentals of economic development and culturalchange, New York, Schocken Books. 1962 P. xxiv- xxv

The data has been referred in the paper is taken from the sources of planning and development division,
58
government of Pakistan.

The data reveals that although the state is not successful enough to provide health care facilities compatible with theuniversally acknowledged standards of health care available in the advanced industrial societies. However it is also
obvious that the justification of the non-contestable idealization of the model of health care is not other than
medicalization of life form as a fundamental moral imperative for both state and society. The data is also helpful to59
understand the gravity of the belated consciousness i.e. consciousness of being left behind felt by the people
regarding the unavailability as well as inaccessibility to the available health care apparatus in the country.

58

See Ejaz S. Wasti, Pakistan Economic Survey 2011-2012, chapter 11 copy right ministry of finance Govt. of Pakistan. P.152154.www.finance.gov.pk.
59
See Suri W.A. “ What is living and what is dead in Iqbal: The incommensurable hermeneutical circle prevail in Iqbal thought, in in
Revisioning Iqbal: As poet and Muslim Political Thinker. (ed) Gita Dharampal-Frick, Ali Usman, Katia Rosteller, Heidelberg,
Published by Oxford University Press Pakistan Lahore 2011

Eubios Journal of Asian and International Bioethics 23 (May 2013)85

The commitment with modern ways of life is not just of political or an institutional nature rather it has specificontologically determined teleological foundations. In post colonial societies the prevailing life form of advanced post60
industrial societies is presumed to be the “natural culmination of the potential already existing in Neolithic man” . This
presumed metaphysical assumption has conceptually transformed the process of modernization from a historical
process to a natural evolutionary phenomenon. The pursuit of progress and development has substantively beeninterpreted within the theoretical parameters of modern enlightenment thought and its corresponding institutions.
61
There is no doubt that in post colonial societies “modern man is defined by progress”
The claim that people in the western world are “living in the golden age of scientific enlightenment and artistic
62
achievement” has very well received by the post colonial societies. It is an acknowledged fact that at national andstate level there is no doubt that science should be consider as state subject. The cost of this epistemological as wellas methodological prioritization will be beard because the inevitability of profound cultural change is empirically evident63
but every body assumes that “the rewards are considerable.”
The scientific methodological prioritization has not been confined to specific task oriented projects and endeavors
pursued by state apparatus or local industrial complex. Rather it has been interpreted as an objective epistemologicalcriterion to judge the credibility of traditional religious and of course historical foundations of post colonial
epistemological tradition.

60

Estava Gustavo, “Development” in Wolfgang Saches (ed.), The Development Dictionary: A Guide to Knowledge as Power,
Johannesburg University Press. 1995 p.9
61
Ibid.,p.16
62
Ayers C.E., “The Theory of Economic Progress”: A Study of the Fundamentals of Economic Development and Cultural Change.
Op.cit. p.xxv
63
Ibid., p. xxv

86

Eubios Journal of Asian and International Bioethics 23 (May 2013)This gradual but remarkable shift in the epistemological paradigm of post colonial societies has questioned ratherdelegitimized their historically derived identity consciousness and its corresponding values and normative stances. On
the one hand, this prioritization opens up a new domain of reformation of traditional and religious epistemologicalclaims in compatibility with modern scientific discourse on the other hand it opens up a gradual process of “making
64
modern self identity” . If we try to understand the phenomena of progress in the context of post-colonial cultural
specific particularities, it reveals a historically determined relation between progress and modern self identity. “To
65
modern man and to those who want to share his identity, rejecting faith in progress is unbearable”. .
The grand narrative of modern discourse compels post colonial intelligentsia to consider scientifically driven
technological progress and development as non contestable imperative. It is because of this reason it is claimed that66
“the third world had to develop first before even think about real progress” . Therefore progress particularly scientificprogress is not just a state policy rather a moral imperative which compels the post colonial intelligentsia to reinterpret
67
whole human history from the spectacles of “purely western genealogy of history” .
It is quite ironic to critically evaluate the theoretical foundations of the process of medicalization in a society where
the availability of physician per 1000 people is around 0.74.The total spending on health care sector has never raised
to 2.5% of the over all GDP of the country in its entire history. It will be better to provide a statistical representation of
the available health care apparatus in the country. This statistical representation provides an opportunity to the reader
64

Taylor C. Sources of Self: The making of modern self identity, Cambridge, Cambridge university press,1989, p.25.
Jose Maria Sbert, “ Progress” in Wolfgang Saches (ed.), The development dictionary: A guide to knowledge as power, op.cit.
p.195
66
Ibid.
67
Estava Gustavo, “Development” in Wolfgang Saches (ed.), The development dictionary: A guide to knowledge as power,
op.cit.p.965Eubios Journal of Asian and International Bioethics 23 (May 2013)87

to understand the how difficult is to critically evaluate the theoretical limitations of the medicalization process in a postcolonial socio-cultural context where people are comparing the available health care apparatus to the universallyacknowledged standards of health care which are derived from the process of medicalization in it self.

There is no doubt that these statistics show that peopleof Pakistan are surviving without appropriate health careapparatus and the most valuable moral contribution one
can make is to provide best available techno-scientificfacilities in health care sector to the people of thiscountry.
Therefore it seems quite unrealistic to raise moral
questions against the institutionalization of scientificmethodological studies to address actual as well as

potential problems faced by the people concerning healthcare sector even run by the public sector or managed by
the private sector. Because in the contemporary social
order of such post colonial life form establishing healthcare unit i.e. Hospital is in it self presumed to be “noncontestable” good which guarantees the emancipationfrom pain, suffering, actual or potential abnormalities, andin extreme cases from painful death. The hospital i.e.
techno-scientifically driven institutional apparatus is88

Eubios Journal of Asian and International Bioethics 23 (May 2013)

presumed to be the most efficient mechanism available
to ensure healing, compassionate care, counter physicalor psychological threats or sharing burden of sickness,life time abnormalities, terminal illnesses and dreadfulexperience of dying love ones.
In pre-modern, under-developed post-colonial societies
all these miseries, sufferings and traumatic experiences
etc. either caused by diseases, abnormalities (bothphysical and psychological) or casualties etc. are
generally faced and countered although inappropriatelyby the families of the affected one, due to theunavailability of modern techno-scientifically driven healthcare institutions. Therefore it is an acknowledged factthat making these institutional apparatus available tocombat this evil of disease, pain and abnormalities is theultimate, non contestable moral imperative. All kinds ofresources including public welfare funds, religious
charities, corporate social benefit funds, philanthropic
activities made by celebrities, sports men and retired
professional are used to accelerate this process of
medicalization and to gain cultural capital.
The only moral cum political problem identified,discussed and critically evaluated is the issue of theaccessibility of the general public to the health careinstitutional order which is derived embryonically from thescientific industrial complex. It is quite fashionable forboth the educated underprivileged middle class
intelligentsia and foreign qualified bourgeois social
activist to condemn state apparatus for not providing
appropriate resources to make facilities of modern healthcare available.
The most popular moral argument used incontemporary literature of bioethics discourse in our partof the world regarding health care issues is to ensure theright to medical care to every citizen of the country.
The fundamental principles of bioethics particularly theprinciple of autonomy and principle of justice are explicitly
being interpreted in the context of the priority the rightover good. Therefore the availability of health care facility
is not just a fundamental moral imperative rather it is alsopresumed to be a fundamental political objective todevelop free democratic order. The autonomy and selfdetermination of an individual which is guaranteed by theconstitution of the country will be meaningless if thepsychosomatic freedom of the individual is not realizable
due to the unavailable or inappropriate health careapparatus. This right of the individual is also protectedunder the covenant of Universal Declaration of Human
Rights article 25:1. Therefore the state is not only
answerable to the people of the country rather it is also
answerable to the international community, under theconditions of United Nations and its correspondingtransnational bureaucratic order.
The individual right of self determination is presumed tobe the fundamental condition of self respect therefore thelack of proper health care facility or inaccessibility to thehealth care units will be interpreted as a violation ofindividual psychosomatic freedom, hence undermines thepossibility of self respect and consequently social wellbeing of individual this may lead to class antagonism andsocial unrest.

It is very important note that protection of health careas fundamental right has also been supplement in article
12 of the International Covenant on Economic, Social andCultural Rights thus the right to health is not justpresumed to be a natural or moral right of an individual
rather it has been presented as one of the fundamental
obligation of a given system of justice corresponding to
the international system of justice.
In the western world it was presumed to beinconceivable to consider gradual process of68
medicalization as some thing problematic till the 1960s.
Medicalization process was generally interpreted asmechanization to counter the morbidity. It was presumed
to be reasonable to invest on this process of
medicalization because it will not only reduce thepossible morbidity but it will eventually decrease the costof health care. Thus the excessive process of
medicalization and its corresponding discourse hascreated a hermeneutical circle which establishes aninverse relational between the growing competence of
health care and the tolerance of diseases orabnormalities.
The formalization of the health care apparatus has
redefined the statusof physician. The deprofessionalized method to interpreted diseases, handle
patient, manufacturing and use of medicine has been
considered as a sign of ignorant, regressive,
obscurantist, unhealthy and sick minded criminal offence.
Unlike the traditional conception of medicine which was
rested upon a foundationalists or essentialist conceptionof human being and presumes an instrumental role ofmedicine to enhance the imbedded immunity potential
individual has to combat diseases. This traditional
conception of medicine has been repudiated by thegradual process of medicalization. It was not just theissue of reducing morbidity rather the issue to improvehealth level and new standards of health and bodyefficiency have been idealized through effective medical
interventions. It was believed that “health levels will
improve with the amount spent on medical service, that
more medical interventions would be better and that69
doctors know best what there service should be”. The
conception of human “isness” has been transformed dueto the gradual victories against epidemic diseases. The
transition from being to becoming has gradually been
substantiated and trust on the non-contestable telos i.e
progress has been established. “Everywhere the belief
on unlimited progress was still unshaken and progress inmedicine meant the persist effort to improve humanhealth, abolish pain, eradicate sickness and extend the70life span by using ever new engineering intervention” .
The trust on the transition from actual to possible humanbeing is the unintended corollary of the institutional
penetration of medicalization process and its capacity to
68

Illich Ivan “ The medicalization of life”, Journal of Medical
Ethics, 1975 p.74
69
Strickland, Stephen P. , US health care: What’s wrong andwhat’ right,NY universe Books,1972 p. 127, quoted in “ Themedicalization of life” by Ivan Illich, Journal of Medical Ethics,
1975 p. 74
70
Illich Ivan “The medicalization of life”, Journal of Medical
Ethics, 1975 p. 74

Eubios Journal of Asian and International Bioethics 23 (May 2013)
make medical intervention. Thus transcendence from
actual to potential human existence is the ultimate
objective of this process. For instance, genetic,engineering, cloning, abortion, genetic mutation, gendertransformation stem cell methodologies etc. are all notpresumed to be the fears any more rather the
expectations of what the process of medicalization isintended to realize.
Section 2: What is wrong with Medicalization
The overall process of progress and development has
made technological revolution possible but at the sametime there are voices emerged against the unintended
consequences of this ruthless thirst to dominate reality by
virtue of scientifically driven mechanism of progress.
“Science the greatest creation of the rational mind hasturned out to be a specter of doom, posing the greatest
threat to our natural environment and our humanexistence. If there has been any progress since western
man rebelled against God and deified himself in ‘the ageof Enlightenment’ it has been in the sphere of human71
suffering, greed and oppression”.
It is very interesting to note that the phenomena of
medicalization which is in it self one of the manifestationof the scientific enlightenment progress has been
reinforced by the general critique on environmental
deterioration. It was claimed that environmental
degradation, poisonous pesticides, gas-chambers,
weapons of mass destruction etc. are not the only threatscaused by the scientific progress, rather health damages(both actual and potential) caused by this over allprocess of progress and development demands morecomprehensive mechanism of health care.
There is no doubt that medicalization is in itself an
ongoing process of excavating the causes of diseases
and reasons of their spread. But at the same time it noteasy to identify the status of physician in the wholeprocess of medicalization what actually their role is? The
protectors, repairers or the architects of future humans?.
The popular literature in our part of the world
acknowledges the central role of the physician in thiswhole process of medicalization. However it has beenargued that what actual role physician should perform
substantively.
“Do they maintain health?”“Do they repair health?”“Do they protect health?”
Despite this fact that what actually the core concern ofthe process of medicalization i.e. maintenance, repair orprotection from the possible future threats to humanhealth either caused by external factors or by internal
genetic, congenital or hereditary factors. The role ofphysician is presumed to be inevitable to counter theactual and possible threats to human health.
The health policy framework either designed by thepoliticians or technocrats they always consult the
specialists of the concerned discipline of knowledge. But
thanks to the modern epistemological discourse thecompartmentalization of knowledge has created71

Manzoor S. Pervez, “A Fetish on trial”, in Progress, vol.-5, no.
1 London Jan.1988. p.1

89

obstacles to develop a uniform policy framework toaddress the core concern of human health because of
their imbedded antagonistic relation with each other. Its
never-ending Iatrogenesis process has made humanhealth as intrinsically an unstable state of existence.
Iatrogenesis is actually a three dimensional process.
a) Defining diseasesb) Search for their curesc) Redefining the diseases which are the result of
medical treatment i.e side effectIt means that the iatrogenesis process is not only
cynically vicious circle but it is also a growing andextending area of control. It is making things medical
which were not supposed to be the part of the realm of
medical. In critical sense medicalization is a process of72
over medicalization. The process of medicalization andits relation with the problem of social control has been
identified in social scientific discourse of 1970s. Since
then significant work has been done in this regard which
reveals the multi-dimensional capacity of social control
that has been exhibited by the gradual process of
medicalization. For instance the works of “Conrad (1975)
on hyperactivity in children, Scull (1975) on mental illness
Pfohl (1977) on child abuse and Schneider (1978) on
alcoholisms as a disease” have problematized the issueof medicalization regarding it potential of social control.
Unlike the above mentioned case studies regarding the
medicalization of social deviance as well as thenormative predication of the process of medicalization
have also been problematized, the “studies analyzed
changes from non medical to medical definition andtreatments… e.g. Foucault 1965, Gusfield 1967, Wertz
and Wertz 1989, Illich 1976 ” all have identified andcritically evaluated this overwhelming mechanism of
discipline, control and its over all impact on the meaning
and the sense of one’s existence. Zola’s definition of
medicalization incorporate both aspects of medicalization
i.e. pathological and socio-cultural, “medicalization is aprocess where by and more of everyday life has comeunder medical domain, influence and supervision”.
Conrad has elucidated three different levels of
medicalization to understand the scope of this process.
a) The conceptual levelb) The institutional levelc) The interactional level
The conceptual level deals with the creation ofterminologies and linguistically derived jargon tounderstand order and explicate the problems to which
health care professionals are or will be confronting with.
The institutional level is the formalization of theterminologies, vocabulary and models, medical
professionals i.e. specialist have conceptualized ortheorized to address the given problem, within theparameters of the organization’s prescribed manual.
In this sense physician works within the formal
structure of a given health care apparatus. Thus
“physician may function as gatekeepers for benefits that72

Conrad Peter, Medicalization and social control, in Annual
Review of Sociology, vol.18 1992 p.210

90

Eubios Journal of Asian and International Bioethics 23 (May 2013)

are only legitimate in organization that adopt a medical
73
definition and approach to a problem”.
The interactional level has relatively far more importantsociological, cultural and axiological implications then therest of the two levels. The patients/physician interaction
demands comprehensive re-evaluation as well as therevaluation of the matrix in which the patient has beensituated. The disease carrier i.e. patient and the disease
interpreter i.e. physician have substantively different
vocabularies,
hermeneuticalperspectives,
andrisk/stakes associated with their mutual relation etc. allthese factors directly or indirectly affect their mutualinteractive space and its corresponding outcomes.
The identification of the problem either as pathologicalor psychological or other form of social deviance by theconcerned health care authorities is not just redefine
individual as a patient rather redefines the whole matrix
in which the patient has been situated. The strength andsocio-cultural legitimacy of this authoritative statusderived from the institutional recognition of theconceptual formation previously made by the specificdiscipline of knowledge and its corresponding practices ina given health care unit. Therefore this medical form oftreatment is not just specific to the body of the patientconcerned rather it has far reaching sociological, culturaland axiological implications for both patient and his
family.
It is important to note that this re-evaluation andrevaluation capacity of the medicalization process isrelative to the level of modernization and its
corresponding institutional order. According to Cornwell(1984) “subcultures, groups, or individual may very intheir readiness to apply, accept, or reject medicalized74
definitions”.
The dominant role of the physician
regarding the legitimate execution of bio-power is directly
proportional and functional to the intensification of theprocess of medicalization. However, this soft expressionof bio-power regarding the redefinition of human being or
becoming human i.e. actual or potential existence ofconcerned individual is relative to the scope and theinstitutional penetration of the process of medicalization.
It is very interesting to note that the under the burden of
so-called positivism “medicalization researches are much
more interested in the etiology of definitions than the75
etiology of the behavior or conditions”. The cause ofthis redefinition process might be positivistic but its
effects are never morally neutral. This actually leads tocomprehensive shift in the spectacles of socio-cultural
understanding which is the result of gradual replacementof religious or social model of human understanding to
medical model. The work of Whalen and Henkes 1977 in
76this regard is important.

This replacement of model although has not been
substantiated in post-colonial, pre-modern societies like
Pakistan but the theoretical idealization of medicalization
reveals that it will eventually the intended or unintended
consequence of the overall process of progress anddevelopment. The most interesting aspect of
medicalization process is that it addresses both aspect ofindividual existence i.e. natural life processes which
include “sexuality childbirth, child development menstrual77
discomfort (PSM), menopause, aging and death, etc.”
where as the socially deviant behaviors for instance,“alcoholism, homosexuality, eating problems from overeating (obesity) to under eating (anorexia), child abuse,
78
compulsive gambling, infertility and transsexualism” etc.
This all encompassing scope of medicalization process
has extended the capacity of social control and as wellreplacing the competing mechanism of control i.e.
religious or traditional models from that of medical. The
domination and also the socialization of the medical
model regarding the production of truth have been
established by the health care unit (i.e. Hospital). The
Hospital according to Foucault is “a place of investigation
for a hidden truth and of testing for a truth to be
79
produced”. The hospital is a micro-unit to establish thediscipline of bio-power under the conditions of truth
produced by the discourse of bio-medical sciences. The
whole idea of Hospitalization presumes that “the sickperson left at liberty in his ‘milieu’ in his family, in his
circle of friends, with his regimen, his habits, his
prejudices, his illusions could not help but be affected by
a complex, mixed and tangled disease, a kind of
unnatural illness that was both the blend of several
diseases and the impediment preventing the true disease80
from being produced in the authenticity of its nature”.
According to Foucault, the history of ideas reveals adelicate relation between the manifestation and the
production of truth. The understanding about the
manifested disease, social deviance, meaning of crime,
abnormality etc. is possible “within the limits of a81
manifestation of truth inside the norm of knowledge”.
The production of truth is primarily based upon its
testifiablity. However, the production of truth always
derived its substantive justification from the manifestationof truth i.e. the norm of knowledge. In this sense the
manifestation of truth and the production of truth are not
only two different complementary processes but also can
not be separated from each other. Secondly, it also
reveals that constant production of truth in any specificdiscipline of knowledge, let’s say medicine establishes its
justificatory capacity from the manifestation of truth.
Consequently it also determines the status and also
antagonistic relation of such disciplines with othercompeting spheres of knowledge or mechanisms ofcontrol.

73

Ibid., p.211
Ibid.
75
See Conrad, Medicalization, Etiology and Hyperactivity:
Reply to Whalen and Henker. Soc. Prob. 24:596-98. quoted in
Ibid.p.212
76
See Whalen ,C.K., and Henker, B., The Pitfalls of
Politicization: Response to Conrad’s “The Discovery ofHyperkinesis: Note on The Medicalization of Deviant Behavior”,
Soc.Probl. 24:583-95
74

77

Conrad P., “Medicalization and Social Control” op.cit. p.213
Ibid.
79
Foucault M., “Psychiatric Power” in M. Foucault Ethics:
Subjectivity and Truth (ed.) Paul Rabinow vol.1 NY, The New
Press, 1994 p.39
80
Ibid.
81
Ibid.
78

Eubios Journal of Asian and International Bioethics 23 (May 2013)
There is no doubt that enlightenment epistemologicaldiscourse has generated a most sophisticatedmechanism of specialization which is the result of thecompartmentalization of knowledge. This never-ending
process of the compartmentalization of knowledge has
initiated multiple dialectic of the production of truth. It
implies that different structures of knowledge derived
from enlightenment discourse presume an antagonistic
and competitive relation with each other. Foucault
believes that the crises emerges due to the clash ofdifferent disciplines of knowledge which seeks theirjustification from the same norm of knowledge, “thecrises in these discipline does not simply call into
question their limits or uncertainties in the sphere ofknowledge it calls knowledge into question, the form ofknowledge, the ‘subject-object norm’; it questions therelation between our society’s economic and politicalstructure and knowledge (not in its true an untrue
82
contents) but in its ‘power-knowledge function”.
It is very important to note that the clash of different
knowledge structures is not beanie rather aggressively
malignant and in extreme cases intellectually oppressive.
The structures of knowledge are intrinsically competitive,
for instance the enlightenment epistemological discourse
has dominated its rival discourse i.e. religious discourse
regarding the determination of legitimate public sphere.
The structure of medicine along with the myth ofnaturalism and positivism associated with it and its
complementary disciplines have contributed a lot in thisregard. Under the illusionary burden of positivisticallyderived objectivity the organic relation between morality
andepistemology
wasdisentangled
andthecomprehensive replacement of religion not just as alegitimate epistemological paradigm but also a moral
foundation has also been done, according to Zola
83
medicine has “nudged aside” the religion as medium of
discipline. Turner has also acknowledged that religion
84
has replaced medicine as a legitimate mechanism ofsocial control.
Foucault on the other hand has explicated the internal
competitive relations between different knowledge
structures derived from same epistemological norm. His
analysis regarding the determination of the meaning isvery important to understand the axiological andnormative implications of medicalization process in postcolonial socio-cultural context. According to his analysis
genealogical understanding of abnormality reveals a
direct relation between the extension of the area ofcontrol of medicine and the extension of the definitional
scope of abnormality.
The definition of abnormal presumed thesefundamental elements
85
1. The human Monster.
86
2. The individual to be corrected.
82

Ibid., p.17
See Zola, I.k. “Medicine as Institution of Social Control.”Social. Rev. 1972 ,20: 487-504
84
Turner, B.S. The Body and Society, Oxford, Basil andBlackwell. 1984. p.280
85
Foucault M. “ Abnormals” in M. Foucault Ethics: Subjectivity
And Truth (ed.) Paul Rabinow vol.1 NY, The New press,1994
p.51
83

91

87

3. The Onanist
The Human Monster is derived from the traditional
mythological discourse the theoretical matrix of this idea
is intrinsically legal but not just specific to social
connotation of law rather in the context of “natural law as
88well”. According to Foucault, the intellectual traces ofthese kinds of abnormalities manifested in different
courses of ancient, classical and medieval intellectual
discourse. Foucault has discussed the human monster
as an allegorical expression of abnormality to explicate
the antagonistic relation between two different structuresof knowledge regarding the imposition of their authority
claims about the status of normality and the legal cost
one has to pay from the deviation of established patternof normal behavior. Foucault has referred the trial ofhermaphrodite in which jurists and physicians clashed89
from the Rouen affair”. Foucault has provided a detail
historical account of the epistemological clashes between
Christian jurists and medicine. The exposition of different
cases, for instance, Anne Grandjean 1752, F.E.
Cangiamila 1758, Henrieette Cornier 1825, Antoine Leger90
1824, Louis Auguste Papavine 1825.
Human to be corrected is another way to look andinterpret abnormality according to Foucault. How man
should be presumes that those individuals who havedeviated from the mechanism and standard of modern
disciplinary power are abnormal but they can benormalized by effective use of the disciplinary techniques
emerged from the modern myth of transcendental
reasoning.
This shift in the attitude regarding the determination of
the status of abnormal is the reflection of increasing
methodological reliance on medicine and its capacity tocorrect human being in compatibility with the life world
emerged from the modern discursive practices. The
institutionalization of modern standard of disciplinary
power in school, work place, families’, army and othersocio-cultural and state apparatus provides functional
standards of normality. In this sense the idea of
normativity has explicitly been redefined from theenlightenment epistemological discourse. It reveals that
normality has not just pathological foundations but
individual’s capacity to harmonize with any given order ofdiscipline is also needed to address clinically. Thissystematic realization has extended the scope ofabnormality from pathological to socio-cultural.
Thus abnormality as simply the deviation of thestandard behavior Institutionalized by the modern
disciplinary practices, is one of “the new procedures for86

Ibid., p.52
Ibid., p. 53
88
Ibid., p.51
89
Ibid.,51-52. In his foot not Foucault has provided the detail ofthe case as “ This concern the case of Marie Le Marcis. Born in
1581 and baptized as agirl, she eventually adopted men’s dress
and took the name of Marin, and undertook to marry a widow,
Jeanne Le Febvre. Arrested, she was given death sentenced
on May 4,1601, for the ‘crime of sodomy.’ The report by doctor
Jacques Duvel saved her form being burned at stake .She wassentenced remain a girl.”Ibid.,p.56
90
See footnotes numbers 2,3,4. In which Foucault has
mentioned these cases. Ibid., p.56
87

92

Eubios Journal of Asian and International Bioethics 23 (May 2013)training the body, behavior and aptitudes open up the
problem of who escape that normativity which no longer91
the sovereignty of the law.” Considering the long term
implications of such kind of deviation compels the power
structure to increase the cost of such deviation to
discourage the actual and the potential offenders of risingmodern disciplinary order. At the first instancedisqualification of the deviated person from the sphere oflegal subject is the punishment of the violation ofmodern discipline. The immediate institutional impact orconsequence of this disqualification is the suspension of
all the rights guaranteed by the constitution. The
individual has to fulfill the manual behavior patternprescribed by the ever extending process of
medicalization, otherwise all the constitutional rights ofthe given to individual will be taken away. The cost of
being identified as abnormal in modern mechanism of
disciplinary practices is unquestionably phenomenal. All
these judicially imposed imperatives are rested upon the
non-contestable authority of medicine. It is alsointeresting to note that the bio-power determines both theprocess i.e. the exclusion from the paradigm of normality
by imposing a tag of abnormality on an individual who
has failed to adjust in modern disciplinary order. On theother hand, it has also developed a mechanism ofcorrection to make the re-inclusion of those unfortunates
92
who have been left behind. “This juridical and negative
frame will be partly filled partly replaced by a set oftechniques and method by which the authorities will
under take to train those who resist training and correct93
the incorrigibles.”The third element of abnormality is defined in term of
the misuse of one’s own body for sexual pleasure. The
discourse of sexuality is according to Foucault is
intrinsically a modern phenomena. Under the condition of
overwhelming growth of industrialization the significanceof the productive use body has dominated themechanism of control “a process of repression linked to
the new requirement of industrialization, the producing
94
body as against the pleasure body”. The discourse of
the body and its use or misuse has developed amechanism of discipline and control, it has opened a new
realm of extensive medicalization of life. The scope of
which extended from body to its legitimate andillegitimate, normal /abnormal function of desire, its
suppression, repression, its linguisticality and its
corresponding identity paradigms, “sexuality limitless
etiological power at the level of bodies and diseases is
one of the most constant theme not only in the text of thatnew medical ethics but also in the most serious works of.95
pathology”
The most important aspect which sustains thisoverwhelming medicalization of the life world irrespectiveof the fact that the damages caused by this iatrogenesis
91

Foucault M “Abnormal” op.cit. p.52
This model of exclusion and inclusion can also be used tounderstand the prevailing antagonism between fundamentalism
and modernism, traditionalism and feminism, Islam and West,etc.
93
Foucault M. “Abnormal” op.cit. p.52
94
Ibid.
95
Ibid., p.54
92

process is far more greater than the decline in morbidity it
caused. The internal paradigmatic incoherence of thisaloes specific axiological process is derived from its
comic apology. The rich men (who can afford all theburden of facilities made available by scientific industrial
complex through the medicalization apparatus, consider
themselves as unlucky and consider that the cause of
their miseries is the will of the God.
The poor on the other hand consider themselves asdeprived from their legitimate right of health care due tothe inequitable distribution of resources. Thus it ispresumed that although increased morbidity has madeavailable by the medicalization process. However due tothe inherent and structurally determined classdiscrimination or the violation of fundamental right ofhealth care has made unavailability of decent living
conditions impossible.
Concluding remarks
The traditional bioethical approaches, i.e. Good-based
ethical theories, which are rested upon essentialist
foundations and absolutist conceptions of human being
are not consistent with a contemporary dynamic of everchanging dialectical process of iatrogenesis. The
ontologically essentialist conception of human nature has
been institutionally compromised by the process of
medicalization.
If we look at the contemporary approaches of medical
sciences toward the understanding of human beings it isobvious that they are not focusing on the “is ness” ofhuman being rather than that of becoming of human. The
whole discourse of cloning, genetic mutation, stem, cellmethodologies, innumerable possibilities of vaccinations,transplantation etc. are predominantly futuristic andteleologically harmonized with a grand mechanism toengineer a super human being i.e. Ubermench. The
emergence of techno-sciences has opened a new realmof technological development particularly in the field ofbiotechnology, robotics, nanotechnology, pharmacology,
artificial intelligence etc. to become more human ascompared to our previous generations. This attempt oftransition from human being to human becoming is notjust theorized by the enlightenment intellectual discourse
rather it has substantively been practiced andinstitutionalized by the scientific industrial complex.
It appears that this process will lead to never ending
rather never achieving transcendental standard of ideal
man i.e. Ubermench.
In our part of the world the nature of bioethics
discourse is predominantly traditional. The traditional
applicatory ethics undermines the complexity of theprocess of medicalization because it is just theapplication of traditional normative ethical principles like,utilitarianism, virtue theory, religions authoritarianism,
cultural relativism or right based moral principles. The
result of this application of moral/ethical principles without
questioning the legitimacy of the system in itself makes
the applicatory ethics as intrinsically procedural. It meansthat without questioning the legitimacy of the dominant
medical scientific discourse and its corresponding
institutional procedural mechanism, bioethics is just theaccommodation of whatever possibility techno-scientificEubios Journal of Asian and International Bioethics 23 (May 2013)
model has explored. It is important to understand that thecontemporary techno-scientific mechanism is not in the
search of understanding or discovering facts abouthuman body it is actually in process of creating reality
and trying to impose human will on the reality to stretch
the possibility of possibilities. Therefore the technoscientifically driven process of medicalization isinterpreting human as not being rather becoming.
It is because of this reason it is reasonable to claim thatthe fundamental problem of contemporary bioethics is
intrinsically existential and without addressing theontological foundations of contemporary process of
medicalization bio-ethical discourse will be just the
management of the findings, discoveries, inventions,distortions and instillation of techno-scientific model of
medicalization. The maximum potential this bioethics
discourse has, to make power structure realize that
health care is a fundamental right and it is the
responsibility of the state, civil society and of course
market forces to provide common people an opportunity
to realize this fundamental right, i.e. free or subsidized
access-to-health-care.
It is important to note that due to this overriding processof aetiological medicalization the scope as well as thecost of health care has remarkablely increased. For
instance due to excessive scientific development many
issues which were not presumed to be the part of therealm of medicalization, and are now very much being
consider as a part of it, like vaccination, transplantation
etc. are now claimed to be a right of the individual whichis to be available by the state, international health careassociations or charity organizations. As the time passes
the list of rights will be extended dramatically, forinstance the right of, abortion, cloning, genetic mutation,
gender transformation stern cell treatment etc. The
guarantee of right, or the availability of right either bymarket forces or state apparatus legitimizes that theongoing mechanism of medicalization and quest to
become supermen, constant struggle of stretching thepossibility of possibilities is in itself logically coherent andmorally consistent? Which is obviously required an
ontological leap other wise it will be an ironic end.

The Current State of Surrogacy
in Thailand and the Ethical
Assessment of Dr. Somboon
Kunathikom – A Study of Thai
Reproductive Medicine(Surrogacy) Ethics, by Means ofa Three-Layer Structural
Analysis-Masayuki Kodama, Ph.D.
Director, International Exchange and Language Education
Center, National Institute of Fitness and Sports in Kanoya,
Shiromizu-cho, Kanoya City, Kagoshima 891-2393, Japan
Email: kodama@nifs-k.ac.jp

93

Abstract
The practice of surrogacy in Thailand, with its base in
the capital city of Bangkok and the nationwide number ofsurrogacy cases exceeding one hundred, goes back to
1991. Dr. Somboon Kunathikom of Bangkok Hospital haspracticed non-commercial surrogacy under silent
authorization from the Thai government which strongly
promotes medical tourism as a national project.
Based on the result of an ethical investigation based ona three-layer structural analysis, this paper consists of an
introduction to the current state of surrogacy in Thailand(layer 1), an inquiry into Dr. Somboon Kunathikom’s
ethical assessment (layer 2), and Theravada Buddhism’sview of reproductive technology in support of commercial
surrogacy perfomed at Superior ART in Bangkok (Centre
for
Assisted
Reproductive
Technology
andPreimplantation Genetic Diagnosis) and so on (layer 3).
1. The current state of surrogacy in Thailand (layer 1):
According to Dr. Somboon Kunathikom, he has been
involved in more than 10 of 100+ cases of surrogacy thathave been performed in Thailand.
2. Dr. Somboon Kunathikom’s ethical assessment(layer 2):
According to Dr. Somboon Kunathikom, in Thailand
where IVF-ET is implemented up to 4000 times per yearwith an elevated pregnancy rate of 30%, theestablishment of regulatory legislation is needed in orderto prevent any trouble accompanying surrogacy. Patientsborn without a uterus, patients whose uterus has been
surgically removed, and heart disease patients who wish
to give birth to a child are considered as subjects forsalvation. However, in anticipation of the consequencesof commercial surrogacy, Dr. Somboon Kunathikom also
pleads for a possibility to restrict future developments.
3. Theravada Buddhism’s view of reproductive
technology in support of both the surrogate mother’s
position and commercial surrogacy performed at
Superior ART in Bangkok (Center for Assisted
Reproductive Technology and Preimplantation
Genetic Diagnosis) and so on (layer 3):
The Thai parliament has been deliberating on
regulatory legislation for surrogacy since 2010. Due totheir deliberation, both hospitals and private practitioners
do not engage publicly in surrogacy. As such, couples
requesting surrogacy either search for a surrogate
mother by themselves or through an intermediary, or
recruit a surrogate mother on the internet, with many of
the women volunteering to become surrogate mothers
placing self-introductions on the internet on their own
initiative.
In Thai society, where large differences exist in theincome between people living in the metropolis of
Bangkok and those from rural villages, for women of poorfamilies the high earning surrogate motherhood appears
as an alluring road towards large income gains. But, thisis not the only reason why women from poor families areentering the reproductive technology market. To thesurrogate mother reserve corps of Thailand, surrogacy
would also appear to be a fulfilling job that grants them ataste of the blissful sensation of pregnancy. Many ofthese women, as followers of Theravada Buddhism, have94

Eubios Journal of Asian and International Bioethics 23 (May 2013)

a strong sense of desire to be useful to their fellow
women suffering from an incapacity to bear children.
There are also those that possess a strong altruistic
motivation to help people in a state of suspended
atonement for their sins for the purpose of thamboon(accumulating virtue). And there are also exceptional
cases of women who offer surrogate motherhood without
asking for any compensation. The Thai populace, ofwhom 94% believe in thamboon and reincarnation,
concepts that form the core of Theravada Buddhism(Hinayana Buddhism) and that have deeply permeateddaily life, maintains a relatively tolerant attitude towards
commercial surrogacy to which women from poor families
offer of their own accord.
Keywords: Surrogacy, Medical Tourism, Art, Somboomn
Kunathikom, Ethics
Preface
In Thailand, the country where medical services andtourism melded to create medical tourism, the acquisitionof medical tourists, as with India, Singapore andMalaysia, has been established as the biggest project forthe combined public and private sectors. The Thaigovernment’s promotion of medical tourism as a national
policy extols the three sales points below that are basedon a global hospital management policy to directly accept
foreign medical tourists in Thailand’s general hospitals
equipped with state-of-the-art medical facilities.
1. Accessibility to medical treatment – a solution to thelong lists of patients waiting to receive medical
examinations in countries with free public healthinsurance like England and Canada
2. Cheap, high-level medical services – offering stateof-the-art medical services by foreign trained
physicians at lower rates than in the US or Europe,etc.
96
3. 5-star rated supplemental hotel facilities (luxurious
lobbies with doormen, etc.) and various other97
services and guidance brimming with hospital staff
hospitality –from hospital formalities to visa
information and tourist activities, and, of course,
airport transportation
The concept of large hospital management focused on
foreign medical tourists is aimed at improving customer
98
satisfaction, and 16 hospitals in Thailand have been
96

Facilities attached to the hospital: restaurants serving
national foods from all countries, McDonalds, shopping facilities(Seven Eleven), cafés, etc.
97
Services offered at other facilities attached to private general
hospitals catering to foreign medical tourists are: medical
treatment resorts with luxurious private rooms and care, a placefor Islamic worship (Bamrunrad International Hospital), lodging
accommodations for patients and their company. Inside thehospitals large numbers of non-medical staff are posted,
offering meticulous customer service. The business model ofprivate general hospitals in Thailand is focused on the
expedient offering of medical services at low labor expenses
funded by the medical costs covered by the foreign residence
insurance of foreign medical tourists.
98
Private large hospitals that have received a certified
evaluation by the JCI of Thailand are as follows:
1. Bumrungrad International Hospital (established in 1980,
performance of PGD and non-commercial surrogacy, Japanese99

certified evaluation as international hospitals by the
Joint Committee International (JCI) as of late December,
100
2011. The Bumrungrad International Hospitalin
Bangkok, for example, has witnessed a sudden increasein the number of wealthy patients from the Middle East
(UAE, Qatar, Oman) since the 9.11.2001 terror attacks in
the USA. As a result of the sudden increase in thestrictness of US immigration screening procedures, theoil money from Arab countries is now, instead of flowing
into the US where strong anti-Islamic sentiments havetaken root, being redirected into the energetic Theravada
Buddhist (Hinayana Buddhist) country of Thailand. At
present, the level of medical tourism cost-performance inThailand is ranked very high in the world.
Many of the private general hospitals that open theirdoors directly to foreign medical tourists are offering highlevel Assisted Reproductive Technology (ART) as well as
noncommercial surrogacy. According to FY2009 statistics
from the Thailand Medical Tourism Cluster of the Thai
Department of Tourism made public on their101
homepage , medical tourism in Thailand has shown “anspeaking medical staff and Japanese interpreter in residence,
Japanese customer service department in place) (JCI
certification in 2002)
The following hospitals (2-9) belong to the Bangkok Hospital
Medical Center (BMC) Group that is managed by the Dusit
Group
2. Bangkok Hospital (BH) (performance of noncommercial
surrogacy, Japanese speaking medical staff and Japaneseinterpreter in residence, foreign institute for Japanese)
3. Bangkok International Hospital (BIH) (the first hospital in
Thailand to accept foreign patients)
4. Bangkok Heart Hospital (BHH) (Thailand’s only private
hospital specializing in cardiology)
5. Wattanosoth Cancer Hospital (WCH) (Thailand’s only
private hospital specializing in cancer)
6. Samitivej Sukumvit Hospital (performance of PGD, JCI
certification in 2007, Japanese speaking medical staff andJapanese interpreter in residence)
7. Samitivej Srinakarin Hospital (JCI certification in 2007)
8. Samitivej Srinakarin Children’s Hospital
9. Samitivej Sriracha Hospital
10. Bangkok Nursing Home Hospital (BNH) (performance ofnoncommercial surrogacy, Japanese interpreter in residence)
11. Praram 9 Hospital (Japanese speaking medical staff andJapanese interpreter in residence)
99
In Japan, since 2010, Kameda Medical Center (Kameda
Hospital – Kameda Clinic) in Kamogawa city, Chiba prefecture,
and NTT Japan Kanto Hospital in Shinagawa-ku, Tokyo (March
2011),
have
JCI
certification.
http://www.jointcommitteeinternational.org
100
The Bumrunrad Hospital was, in 2002, the first Asian
hospital to receive JCI international hospital certification. 540
beds, 1200 physicians and dentists, 900 nurses, 600 co-meds,
200 non-medical staff, more than 1 million patients per year,
and among 400,000 foreign medical tourists Japanese patients
number 3000 (Nomura Research Center: Report concerning
Business Creation Support Service Innovation in FY 2009)
Percentages for foreign medical tourists visiting Thailand per
residential region (2008) are, UAE 44%, Qatar 9%, Oman 6%(Development Bank of Japan Inc.: New Currents in the HealthCare Industry  The Internationalization of Advancing
Medicine, Topics of this month, No. 147-1, 2010)101
http://japan.thailandmedicaltourismcluster.org/治療旅行について/治療旅行/治療旅行とは.aspx Incidentally, medical tourism

Eubios Journal of Asian and International Bioethics 23 (May 2013)
average annual growth of 16.5% (over the years 20012009)” and a sudden increase exceeding GDP, with the
combined hospital/tourism income profits generated by102
medical touris amounting to 285.9 billion yen (108,197
million baht; exchange rate 1 baht=2.58 yen) and anannual number of 1,390,000 foreign patients (the numberof patients increased from 630,000 in 2002 to 970,000 in
2003, exceeded 1 million after 2004, and reached 1.4
million in 2006).
Bangkok is the base for surrogacy in Thailand, with theorigins of its practice dating back to 1991, and thenationwide number of surrogacy cases exceeding 100 todate. The number of nationally registered IVF (in vitro
fertilization) clinics that have been authorized by theRoyal Thai College of Obstetrics and Gynecology, theorganization that has regulated physician conduct in thefield of assisted reproductive medicine, since 2007 is 35(30 principle teams and 5 affiliated teams), with more103
than 100 IVF physicians. During FY 2008, reproductive
medical therapy was performed approximately 4000
times in Thailand, with a pregnancy success rate of
104
30%.
With Thai governmental silent authorization strongly
promoting medical tourism as a national project, one
physician involved with non-commercial surrogacy, Dr.
Somboon Kunathikom of Bangkok Hospital, has been
performing advanced reproductive medical activities.
The goal of this paper is to investigate Thai advanced
reproductive medicine (surrogacy) ethics by way of athree-layer structural analysis, as part of a larger
research project, An Investigation of Asian Bioethics
based on a Three-Layer Structural Analysis (researchleader: Prof. Takao Takahashi, Faculty of Arts,
Kumamoto University); a project funded by the Scientific
Research Fund for Fundamental Research (B). In thispaper, I introduce the current state of surrogacy inThailand (layer 1), as well as search for Dr. Somboon
Kunathicom’s ethical assessment (layer 2) andTheravada Buddhism’s view of reproductive medicine
has also been established as a new growth strategy (decision
made at Cabinet meeting December 2009) in Japan. Estimatednumber of medical tourists 430.000, market size approximately
550 billion Yen, tentatively calculated economic affect ofapproximately 280 billion Yen (ibid.)102“by 2012 it is predicted to be worth $100 bn annually.” “theforeign medical services sector is already expected to make100 bn baht($3.3bn) by 2015.”(Thai embrace of medical tourism
divides professionals [guardian.co.uk 26 April 2011])
103
Comments of Dr. Somboon Kunathikom. Reference to thestatistical documents for Assisted Reproductive Technology inThailand from 2001 through 2007.
104
Comments of Somboon Kunathikom M.D., president of theRoyal Thai College of Obstetrics and Gynecology, inattendance at the forum “All about Surrogacy Problems” (4 June2010), organized by the Scientific Media Center of the Thailand
National Science and Technology Development Agency ,NSTDA (independent research institute supervised by Thailand
Royal Cabinet Ministry of Science and Technology).
Incidentally, during FY 2008, the number of times IVF has been
performed in various South-East Asian countries, as compared
to 4000 cycles in Thailand, is as follows: 1500 cycles inIndonesia, 2500 cycles in Singapore, 3000 cycles in Malaysia,
and 6000 cycles in Vietnam.

95

that supports commercial surrogacy practiced at Superior
ART in Bangkok (Center for Assisted Reproductive
Technology and Preimplantation Genetic Diagnosis) andso on (layer 3). In conclusion, after touching upon theThai government’s position on ethical problems
associated with commercial surrogacy, some future
topics of research will be introduced.
1. The current state of surrogacy in Thailand (layer 1)(a)Medical tourism stimulation measures by theThai government and surrogacy regulation
The Thai government wholeheartedly promotes
medical tourism as state policy. The catalyst for thischange in policy occurred in 1997 with Asian financial
crisis, in which Thailand was at the hypocenter. In 2002,stthe cabinet of the 31 Thai prime-minister Thaksin
Shimawatra (9 February 2001 – 19 September 2006),
taking the free-fall of the baht to its advantage, beganwith an announcement of its plan for a medical hub(medical services transcending national border), issued
in rapid succession the “Thai medical hub” measures
aimed at the reconstruction of the economy. The cabinet
published a 5 year medical tourism plan in 2003,
formulated a policy with the goal of transforming Thailand
into a medical hub country in 2004, and increased
financial investments into the medical infrastructure.
Following the Thaksin administration, the Thaigovernment regarded the free-fallen baht as a strong
weapon against Thai weak economics and embarked
upon economic reconstruction based on stimulation
measures for high quality low cost medical tourism. In
order to attract large numbers of tourists and wealthy
medical tourists from abroad, the Thai government raised
aerial portal services maintenance as its main policy,
opening the airport with the world’s largest airport
terminal building at Suvarnabhumi in 2006, and waiving
medical visa fees. In 2010, the Thai International Airline
TG launched a Low Cost Carrier (LCC) subsidiary.
105
Today, the Thai government
considers medical
tourism as an effective means for the acquisition offoreign currencies and for increasing domestic demand,
providing state-of-the-art medical treatment ranging fromcosmetic and plastic surgery to reproductive medical
treatment (including sex reassignment surgery; SRS, i.e.
sex change surgery, surrogacy and IVF-ET) to foreigncountries. Historically, the initiative for Thailand’s
105

Thai economist Ammar Siamwala tells it like this. The Thaigovernment’s policy for the promotion of medical tourism is, as
opposed to making Thailand economically affluent, “the worst
policy that the government could ever think of” destroying
medical treatment for the poor. Through this policy, thedifferences in distribution of physicians in rural villages andphysicians in the metropolis of Bangkok has seen an increaseof 8 times, and the salary for doctors is about 8-10 times morein a private clinic than in a state hospital.” Because of this, theaffluent class of Thailand and foreign tourists are the ones able
to be treated or to be hospitalized at Bangkok’s private general
hospitals. Receiving treatment at a private general hospital hascome to present a difficult situation, not only to many Thai
people from poor families, but also to people from middle classfamilies. (Thai embrace of medical tourism divides
professionals [guardian.co.uk 26 April 2011])

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Eubios Journal of Asian and International Bioethics 23 (May 2013)

advanced reproductive medicine dates back to the birthof Pavornvitch Srisahaburi, who was born as a test-tube
baby in Chulalongkorn hospital. It was Dr. Pramuan
Viruntamasen, a physician attached to this hospital, who
in August of 1987 succeeded in the IVF-ET procedurethat gave birth to Pavornvitch Srisahaburi. It was at thesame hospital, in 1991, that the first successful case of
surrogacy was performed. However, as a result ofextensive coverage by the media of the surrogacy of aThai actress for her husband’s brother and his wife in1994, the Medical Council of Thailand and the Royal Thai
College of Obstetricians and Gynecologists promulgatedthe Standard for the Provision of Assisted Reproductive
Medical Technology (22 October 1997 medical council
advisory notice no. 1/2540). By limiting the provision ofassisted
reproductive
technology
tophysicians
authorized by the Royal Thai College of Obstetricians
and Gynecologists, the two bodies have only
administered self-regulation on the physician side.
Afterward, in 2000, a case that was taken to court bypersonnel of a national university petitioning for medical
and education expenses for children born out ofsurrogacy was lost. The Thai Committee on Judicial
Affairs that deliberated on the petition decided, inreferring to section 1546 of the Thai Civil andCommercial Code, that the mother of a child born out ofsurrogacy will be the biological mother, i.e. the surrogate
mother, and that, therefore, the couple requestingsurrogacy can become neither the legal mother nor thelegal father. At the opportunity presented by thisprecedent, the Medical Council of Thailand promulgatedin 2001 the Standard for the Provision of Assisted
Reproductive Technology (22 August 2002 medical
council advisory notice no. 21/2544). Within this notice,
the following provisions have been specified as theguiding principles concerning surrogacy.
1. In the event that a couple wishes to make asurrogacy request to a woman other than the wife, theperson undergoing the medical treatment will only berecognized as responding in accordance with the service
in the event that a fertilized ovum originating from agamete of the concerned couple is utilized. (medical
council advisory notice no. 21/2544 paragraph 4/2 (2))
2. Remuneration of the gamete donor by commercial
transaction is not allowed. (same as above, (3) (A))
3. Remuneration of the surrogate person by
employment is not allowed. (same as above, (3) (B))
4. The surrogate person must be a blood relative of oneof the concerned couple. (same as above, (3) (C))
In 2008, an Australian couple (husband Australian, wife
Japanese) signed a surrogacy contract with two Thai
women, receiving 3 children from the women in 2009.
However, the Thai government, in referring to the Thai
Civil and Commercial Code that stipulates that the
woman giving birth to a child is the legal mother, did notissue passports for the surrogate children. There upon,
the couple that had requested surrogacy appealed
against the judicial decision by delivering the results of a
DNA test. Following the amendment of the Citizenship
Act in January 2010 by the Australian government, thecouple that had requested surrogacy were able to takethe three children back home with them to Australia.

Based on this incident, for reasons for guaranteeing therights and welfare of surrogate children, the Ministry ofSocial Development and Human Security drafted theProtecting Children Born Through Assisted Reproductive
Technology Medical Act, which was deliberated on by theCouncil of State. The act was passed by the Committeeof Judicial Affairs in May of 2010, with the following
surrogacy regulatory provisions stipulated by the act(surrogacy articles no. 21-22).
1. (The use of egg cells from the surrogate mother shallbe prohibited): In the case of surrogacy, at least whether
the sperm cell or the egg cell from the couple shall beused.
2. (Commercial forms of surrogacy shall be prohibited):
Juvenile-family court will have jurisdiction over cases ofchildren born through ART and a committee for theprotection of ART children shall be established.
3. (The surrogate mother shall be married and a woman
with experience in childbirth): The surrogate mother shallbe a married woman with experience in childbirth and, for
the use of sperm cells for surrogacy, permission from thehusband is required.
4. (The couple requesting surrogacy shall be legallymarried, no blood relationship shall exist between thesurrogate mother and the requesting couple, and therequesting couple shall have legal rights as parents ofthe surrogate child): The Medical Council of Thailand will
have jurisdiction in protective regulations concerning
surrogacy and surrogate mothers.
5. (In the case the person requesting surrogacy dies
before the birth of a surrogate child, a legal court shalldecide on the caretaker of the child, regulations
concerning the disposal of fertilized egg cells andembryos,andtheprohibitionofpostmortem
reproduction): The use of the gamete of the deceased
without prior written consent will be prohibited.
6. (Disciplinary action against physicians violating
regulations): Penalties for physicians performing ART in
violation of regulations.
7. (Provisional measures prior to legal enforcement): To
certify the surrogate child as the legal child of therequesting couple.
With regard to the aforementioned stipulations, two of
the points require further elaboration. The first point isthat by which the requesting couple is recognized as thelegal parents of the surrogate child. According to thisstipulation, not only is the surrogate child granted
succession rights, but also a refund of medical and othercosts for the legal parents of surrogate children that havecome to be acknowledged as being legitimate becomes
possible. While the protection of the rights of thesurrogate children and the requesting couples has beenenhanced, health support and the protection of rights forthe surrogate mother have not been mentioned, and one
is left completely in the dark concerning the rights of thefertilized egg cell donor and the child’s right to know its
origins. The second of the above points in need ofelaboration is the prohibition of commercial surrogacy.
Within this stipulation, surrogacy mediation andadvertising are also prohibited and violators of this law
will be punished. However, due to the obscurity of theprovisions prohibiting surrogacy, implementation of theEubios Journal of Asian and International Bioethics 23 (May 2013)
law will likely offer room for flexibility. For example, it isstipulated that a surrogate mother cannot be paid morethan her actual expenses for treatment and healthmaintenance. However, in spite of someone’s wish to
make commercial surrogacy subject to legal punishment,
as health maintenance expenses are not specified, it canbe expected that the real world of commercial surrogacy
contracts will also cause them to be adaptively accepted
as altruistic surrogacy contracts.
It is important to note that the above law has not yet
been established. Hereafter, enactment and effectuationof the law will have to wait for deliberations of theLegislation and Regulation Committee and the House ofRepresentatives. The Catholic Church in Thailand,stressing the importance of the bond between motherand her naturally born child more than anything else,
exhibitsadetermined
resistance against theestablishment of regulatory surrogacy legislation that has
as its premise the recognition of surrogacy which entails
human intervention in reproduction. And since the Islamic
and Buddhist communities are drawing up their battlelines in unison, establishment of the law is not yet aforegone conclusion.
(b) The current state of surrogacy in Thailand as
experienced by Dr. Somboon Kunathikom
Dr. Somboon Kunathikom is a physician at Bangkok
Hospital and at present occupies a prominent position in
the Medical Council of Thailand. He has also in the past
been a visiting scholar at the Medical Department of
Osaka University and, therefore, as a Japanese speaking
obstetrician and gynecologist is a reassuring presence tothe tens of thousands of Japanese living in Bangkok.
Statistics for FY2008 show that, of the 150.000 foreigners
who received treatment at Bangkok Hospital (equivalent
to 20% of the total number of patients), the largest group
was Japanese. Most of these patients were residents ofThailand with their families, with medical tourists travelingfrom Japan to Thailand limited to patients with special
medical circumstances. The reason for this is that, thanks
to the universal health insurance system that ismaintained in Japan and its reimbursement system for
expensive medical treatment, Japanese nationals canreceive high quality medical treatment at a fixed liability
share without having to travel abroad for medical
procedures.
According to Dr. Somboon Kunathikom, of the morethan 100 cases of surrogacy that have been performed in
Thailand to date, he was involved in more than 10 ofthem, with 3 foreign patients among those people.
Whether there were Japanese among those his cases
was not noted, but it can be assumed that among thesurrogacy cases performed by Dr. Somboon Kunathikom
requested by foreigners were a Chinese, a Burmese anda Cambodian. Incidentally, even though the Medical
Council of Thailand has published a council
announcement prohibiting Preimplantation Genetic
Diagnosis (PGD), PGD is implemented in choosing thesex of unborn babies in Thailand on a daily basis. Many
Chinese utilize PGD in Thailand for the purpose ofchoosing the sex of unborn babies. Because they will
have had a strong desire for an heir, moreover, under the97

influence of the one child policy of their homeland, they
will want a boy to be born.
1. The ethical assessment of Dr. Somboon
Kunathikom
concerningthepracticeofcommercial surrogacy in Thailand (layer 2)
106
In June of 2011, the Bangkok Post
published anarticle entitled Should commercial surrogacy belegitimized? Listed below are the pros and the cons of
this debate on commercial surrogacy, which call for an
upsurge in the discussion pertaining to these issues.
The majority of Thai women who wish to undergo
surrogacy are from poor families. In developed countries,
due to insufficient information concerning surrogacy inThailand as silently sanctioned by the Thai government,
critical intellectuals are raising condemning voices,
stating things like, the use of surrogate tourism bychildless rich couples from developed countries comes
down to “exploitation of body and mind of poor Thai
females”, and, the procedure is “a commercialization ofhumans, i.e. human trafficking”.
In the case of the former argument, defenders ofsurrogacy retaliate against such criticizers of commercial
surrogacy as follows.
1. If you insist on calling it “exploitation of body andmind of poor Thai females”, then you should think aboutproviding protective measures ensuring the maintenanceof high incomes generated by legal surrogacy.
2. If you wish to make an issue of economic
exploitation, you should think about security against theactual working hours and risks of surrogate mothers.
3. According to surrogacy investigations conducted in
the US during the 1980’s, surrogate mothers were notjust women from poor families. The hypothesis that only
women from poor Thai families form the surrogate
mother reserve corps cannot be upheld. Furthermore, themotivation of women offering themselves for surrogacy is
not just financial, some are eager to experience
pregnancy, while others see it as an altruistic deed.
The latter argument, stating that it is immoral to deal
with humans as if they were commercial products thatcan be bought and sold with money, is countered by the
defenders of surrogacy as follows.
1. The surrogacy contract that is entered into by the
couple requesting surrogacy and the surrogate mother is
not a sales contract for a surrogate child.
2. The remuneration that is paid by the couple
requesting surrogacy to the surrogate mother iscompensation for the actual working hours and risks ofthe surrogate mother, not the price of a surrogate child.
On 4 June 2010, Dr. Somboon Kunathikom, while
attending a forum on All about Surrogacy Issues held
under the auspices of the Thailand National Science andTechnology Development Agency’s (NSTDA) (anindependent research institute under the supervision of
the Thailand Royal Ministry of Science and Technology)
scientific media center, expressed, by and large, thefollowing opinion on the surrogacy regulatory law-The

106

Should commercial surrogacy be legalised? [Bangkok Post 6
May 2011]

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Eubios Journal of Asian and International Bioethics 23 (May 2013)

Protecting Children Born Through Assisted Reproductive
Technology Medical Act, that is now under deliberation.
Today, with the implementation of Assisted
Reproductive Technology reaching the number of 4000
times per year and the pregnancy rate elevated to 30%, it
has become necessary to establish surrogacy regulatory
legislation in order to prevent trouble occurring hand inhand with surrogacy. Those in line for salvation bysurrogacy are patients born without a uterus, patients
whose uterus has been surgically removed, heartdisease patients with a wish for a child and so on. At
present, the surrogacy regulatory law that is underdeliberation by the government prohibits commercial
surrogacy that offers a monetary goal. Consequently, inthe event that one would engage in commercial
surrogacy, under the new law they would be punished bya prison sentence and a fine. On the expectation thatcareer women, not wanting to discontinue their work inlieu of pregnancy or giving birth, or that young women,
seeking to avoid deforming their figures as a result ofpregnancy and childbirth, might request surrogacy, Dr.
Somboon Kunathikom furthermore points out the need to
impose limitations.
The following details his opinion on regulations forcommercial surrogacy and the surrogacy regulatory law.
Definite progress has been made for the welfare ofsurrogate children by the surrogacy regulatory law
currently under deliberation. Nevertheless, among
physicians there is both approval and disapproval withseveral points in debate among physicians. For example,
the issue of sperm cell/egg cell donation, and what would
be an appropriate amount of money as liability for theparents. When this law is enacted and enforced, acouncil will be convened to discuss the details, but aslong as the law has not become official, we are the ones,in accordance with the medical association’s assisted
reproduction technology regulations, making decisions toa large extent. In the event a hospital, a clinic, or a facility
affiliated to assisted reproductive technology isestablished, a certificate from the Royal Thai College ofObstetricians and Gynecologists is required. Although theinspection of medical instruments and equipment isconducted by us, and the medical association has manyrules and regulations, these rules are not laws, and wehave even been told that we lack a medical ethicalstandpoint. Regardless of this viewpoint, I believe thatphysicians will always act with an ethical sense of107
awareness.
3. The position of the surrogate mother andTheravada Buddhism’s view of reproductive
medicine in support of commercial surrogacy
practiced at Superior ART in Bangkok (Centre for
Assisted Reproductive Technology and Preimplantation
Genetic Diagnosis) and so on (layer 3)
How would Thai women volunteering for surrogate
motherhood view both native and foreign couples
requesting surrogacy, who are secretively using
surrogate tourism as a part of the medical tourism that is107

4 June 2010, forum “All about Surrogacy Problems”
organized by the Scientific Media Center of NSTDA.

strongly promoted by the Thai government? And how
about commercial surrogacy? Are Thai surrogate
mothers victims of exploitation with their bodies
dominated by their husbands or by strangers? Or, issurrogacy clinical labor freely decided upon by thesepoor Thai women? A field inspection of surrogacy inThailand is required.
In Thailand, since 2010, the surrogacy regulatory
legislation-the Protecting Children Born Through Assisted
Reproductive Technology Medical Act - has been underdeliberation in parliament. Accordingly, hospital andprivate physicians are, not only in hospitals, refraining
from the practice of surrogacy. In these circumstances,
couples wishing to make a request for surrogacy are
either looking for surrogate mothers by themselves or byusing intermediaries, or recruiting them on the internet. In
fact, even if couples requesting surrogacy were notendeavoring to recruit them on the internet, many womenvolunteering to become surrogate mothers post their own
self-introductions online through their own initiative.
As far as one can see from reading these online
bulletin boards, many of the surrogate mother candidates
who use them are businesswomen in the reproductive
medicine industry. Among them are also people who
search for couples requesting surrogacy by means ofintermediaries and on the internet. In Thai society there isa huge income differential between people living themetropolis of Bangkok and people living in rural villages,
so to women from poor families, surrogacy generatinghigh income appears like an alluring road towards cash
income. Nevertheless, this is not the only reason why
women from poor families are entering the market of
reproductive medicine. To the surrogate mother reserve
corps of Thailand, surrogacy appears like a fulfilling jobthat allows them to experience the elation that comeswith pregnancy. More than anything else, many ofwomen adhering these Theravada Buddhism have astrong wish to be of assistance to their fellow women who
suffer from an inability to become pregnant. Of course,
there are also those among these surrogate motherreserve corps harboring such a strong altruistic
motivation to help others, who refer to a sincere desire tohelp people or to atone for past sins for the purpose of108
thamboon (accumulation of virtue), but there are also
those who, exceptionally, offer surrogate motherhood
free of charge.
Moreover, fortunately for the Thai women of lessfortunate families, the Thai people of whom 94% arebelievers of Theravada Buddhism maintain anunderstanding attitude towards assisted reproductive
technology. With Theravada Buddhism, one would
expect that only the group of monks, renouncing theworld and performing severe ascetic practices (sangha),could be saved, but in fact, for commoners (non-sangha)
who have also not renounced the world, the road to108

Today, the concept of thamboon is used in the meaning ofalmsgiving, but the essential meaning is the performance of
virtue, i.e. the accumulation of virtue, which stands for the three
good acts (almsgiving, strict adherence to the Buddha’s
admonitions and rules, meditation) and the ten good gifts (tenkinds of articles donated to monks and apprentices).

Eubios Journal of Asian and International Bioethics 23 (May 2013)99

salvation is open, and thamboon is its vehicle. In
Thailand, where daily life is permeated by a belief inreincarnation, it is believed that if commoners, who areliving in a world of suffering, accumulate good deeds
through the offering of alms and donations to temples
and monks, they will be reborn happy in the next life, andsurrogacy is perceived as altruistic behavior that brings
relief to infertile patients, or, in other words, thamboon.
In Theravada Buddhism, life in the present world isperceived as the result of thamboon accumulated duringa previous life. Happiness or unhappiness in the present
life is caused by the difference, high or low, inaccumulated virtue during that life. Since good deeds
result in good results and bad deeds in bad results, if
people neglect thamboon in the present world, one caneven be reborn as an animal. In Thailand, where thebelief system of reincarnation, in which human beings arethought to be reborn again and again within the six lower
worlds (hell, hungry ghosts, animals, Asura, humanbeings, heaven) by their own karma, is common sense to
their religion, people hoping for a peaceful life in the next
world will inevitably want to be saving thamboon for thelong term. The best thamboon can be gained bybecoming a monk (hierarchy within a group of monks isbased on the number of years spent since renouncing
the world) and conducting ascetic practices day andnight. If a son renounces the world before the age of 20,
this is thamboon for his mother. If this son officiallybecomes a monk after his coming of age, this isthamboon for his father. However, not just anyone canbecome a monk in the human world. Here, forcommoners living in a world of suffering who have notrenounced the world, the second-best thamboon is to bediligent every day. Quick thamboon can be gained byacts of charity towards temples and monks. The
proprietary class make donations for temple construction
and buy their thamboon insurance in order to ensure a
prosperous life in the next world. Conversely, the middle
and lower classes give alms to mendicant monks
devoted to the Buddha’s teaching that “monks must be
beggars”. It is never the sangha (monks) that rejoice inreceiving alms in the form of thamboon sets (bagsincluding rice or ready-prepared food and a beverage)bought at the supermarket; it’s the non-sangha
commoners that feel pleasure in the giving. This isbecause, to the common people who have not renounced
the world, the accumulation of daily virtues on behalf oftemples and monks is a prior investment that promises a
better birth into the next world. In Thailand, where thebelief system of thamboon and reincarnation is deeply
ingrained into the daily lives of people, there is tolerance
towards commercial surrogacy to which women frompoor families are offering themselves.

Which position did the Thai government take in theaffair concerning the Taiwanese surrogacy placement
109
company “Babe 101” that shocked Thai society?
On 23 February 2011, Thai police searched 2
residences located in a Bangkok suburb. Alongside of thearrest of the staff of the Taiwanese-managed surrogacy
placement company “Babe 101” (4 Taiwanese, 1
Chinese, 3 from Myanmar), 15 foreign women (19 to 26
year old Vietnamese, including 7 pregnant women, ofwhom 11 were volunteer surrogate mothers, and 4
victims of the surrogacy business), employed assurrogate mothers for couples whose surrogacy
placement had been arranged by this company, were
rescued. The company held its headquarters in Taiwan
and recruited commercial surrogacy customers on its
website. The honorarium paid by couples to the company
was 35.000 dollars, with surrogate mothers receiving a
remuneration of 5.000 dollars. Surrogate mothers were
women of Thai, Cambodian and Vietnamese nationality;
surrogacy contracts were not made with women from
Taiwan where surrogacy is legally prohibited.
By the opening of an investigation against 4 Thai
physicians (2 directors and 2 physicians in charge) who
were involved in the “Babe 101” incident and 2
110hospital, hospitals that had been performing surrogacy
had removed, for the sake of appearance, articles related
to commercial surrogacy from their homepages, and thetendency became to limit surrogate motherhood torelatives with whom remuneration would not become anissue. From the beginning, aforementioned guideline (no.
1/2540) of the Medical Council of Thailand has prohibited
commercial surrogacy, and with respect to altruistic
surrogacy, has sanctioned the provision of assisted
reproductive technology services to patients only by
assisted reproductive technology specialists authorized
by the Royal Thai College of Obstetricians andGynecologists. Since 2010, the Thai government hascontinued its deliberation of the surrogacy regulatory
legislation-the Protecting Children Born Through Assisted
Reproductive Technology Medical Act, that will establish
the legal position of surrogate children. When this law isenacted, people directly involved in commercial
surrogacy will be liable to maximum imprisonment of 10
years and a fine of 200.000 baht. Intermediaries andpeople involved in notifications will be liable to maximum
imprisonment of 5 years and a fine of 100.000 baht.

4. The position of the Thai government on ethicalissues concomitant with commercial surrogacy,
and future topics of researcha) The position of the Thai government on ethicalissues concomitant with commercial surrogacy

109(a) Future topics of research
Although the present paper, a pilot study of
reproductive medicine (surrogacy) ethics in Thailand, andbased on an original three-layer structural analysis
method, has yielded some specific results, the research
was restricted to the current state of commercial
Surrogate moms to give birth in Thailand [Thanh Nien 3
November 2011]
110
When surrogacy was performed in these hospitals, one
hospital had acted, without an approval in advance by the Royal
Thai College of Obstetricians and Gynecologists, in violation of
the Hospital Service Standard Act, article 32 paragraph 2, of theStandard for the Provision of Assisted Reproductive Medical
Technology (medical council advisory notice no. 1/2540, dated
22 October 1997)

100

Eubios Journal of Asian and International Bioethics 23 (May 2013)

surrogacy in Thailand and, physician in charge, Dr.
Somboon Kunathikom’s ethical assessment. The
nationwide number of IVF clinics in Thailand that are
involved in surrogacy is unclear, so future research will
be needed to make a continued, gradual and steadyinvestigation of the leading Thai commercial surrogacy
clinics and to make continued inquiry into the ethicalassessments of the physicians in charge.

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