Vera Lúcia Raposo

Facial recognition is an artificial intelligence-based technology that, like many other forms of artificial intelligence, suffers from an accuracy deficit. This paper focuses on one particular use of facial recognition, namely identification, both as authentication and as recognition. Despite technological advances, facial recognition technology can still produce erroneous identifications. This paper addresses algorithmic identification failures from an upstream perspective by identifying the main causes of misidentifications (in particular, the probabilistic character of this technology, its ‘black box’ nature and its algorithmic bias) and from a downstream perspective, highlighting the possible legal consequences of such failures in various scenarios (namely liability lawsuits). In addition to presenting the causes and effects of such errors, the paper also presents measures that can be deployed to reduce errors and avoid liabilities.

The main objection to genetic enhancement is that it will create a “genetic apartheid,” deepening existing inequalities. This paper offers considerations that can weaken the inequality argument against genetic enhancement. First, I question the dichotomy of treatment versus enhancement since the differences between the two are unclear. Second, I argue that human enhancement is part of human nature and that there is no sound reason to accept it in other domains while rejecting it in genetics. The paper also demonstrates that inequality is present in every dimension of society, that “God-given” genetics is profoundly unequal, and that genetic enhancement can operate as a mechanism by which a new genetic equality can be achieved. However, the paper underlines that genetic equality is not, per se, a value to which we ought to aspire if it leads us to a uniform community of downsized human beings. Genetic equality is only valuable if it enhances humankind in general.

In March 2020, the Portuguese Government issued a remarkable regulation by which irregular migrants who had previously started the regularization procedure were temporarily regularized and thus allowed full access to all social benefits, including healthcare. The Portuguese constitutional and legal framework is particularly generous regarding the right to healthcare to irregular migrants. Nevertheless, until now, several practical barriers prevented full access to healthcare services provided by the national health service, even in situations in which it was legally granted. This decision is not only remarkable in light of the fulfilling of migrants’ rights to health, as imposed by international commitments assumed by, but also in view of the fight against COVID-19. The decision is grounded both on human rights and in public health reasons. The paper is divided in two main parts. In the first one, it analyzes national State obligations with regard to healthcare provision to migrants in irregular situation. In the second part, it analyzes the Portuguese solution, using this case study to discuss the possible mechanisms to comply with such obligations.

The events surrounding COVID-19, combined with the mandatory quarantines widely imposed in Asia and Europe since the virus outbreak, have reignited discussion of the balance between individual rights and liberties and public health during epidemics and pandemics. This article analyses this issue from the perspectives of precaution and necessity. There is a difficult relationship between these two seemingly opposite principles, both of which are frequently invoked in this domain. Although the precautionary principle encourages the use of quarantines, including mandatory quarantines, and associated restrictive measures, the principle of necessity puts a break on such measures. The COVID-19 pandemic reveals once again the different interrelations between these two principles. However, the alleged conflict between the PN and the PP is based on a superficial analysis. The relation between these two principles is far more complex, as this article will demonstrate.

The Director-General of the WHO has suggested that China’s approach to the COVID-19 crisis could be the standard of care for global epidemics. However, as remarkable as the Chinese strategy might be, it cannot be replicated in other countries and certainly not in Europe. In Europe, there is a distribution of power between the European Union and its member states. In contrast, China’s political power is concentrated in the central government. This enables it to take immediate measures that affect the entire country, such as massive quarantines or closing borders. Moreover, the Chinese legal framework includes restrictions on privacy and other human rights that are unknown in Europe. In addition, China has the technological power to easily impose such restrictions. In most European countries, that would be science fiction. These conditions have enabled China to combat epidemics like no other country can. However, the WHO might have been overoptimistic. The Chinese standard of care for treating COVID-19 also raises problematic issues for human rights, and the real consequences of these actions remain to be seen.

The use of reproductive techniques and the eventual reproductive negligence from the provider of reproductive services gave rise to situations in which the intended parents are deprived of raising a child genetically connected to them. Courts have been dealing with cases of those for years, but have systemically denied claimants compensation, failing to recognise as damage the loss of genetic connection. In 2017, for the first time, the Singapore High Court provided compensation for that damage, labelled “loss of genetic affinity”. This paper will argue that the damage in question is the loss of genetic connection and results from a violation of reproductive rights because a key element of reproductive rights is to have children with whom we keep a genetic bond and raise them. The paper will explain why the arguments classically argued against such compensation are unfounded and it will argue for a compensation covering both patrimonial and non-patrimonial damages.

Under Chinese law, the juridical status of the embryo and the foetus is unclear, mainly because the existing legislation can be subject to diverse interpretations due to its ambiguous language. Lack of clarity with the law has led to different understandings amongst Chinese legal scholars. However, although there has been no consensus, there has been a clear tendency to deprive embryos and foetuses of legal status or personhood, thereby excluding them from entitlement to fundamental rights, an understanding reinforced by the Confucian view of the beginning of life. It is expected that in the near future the Chinese courts will face issues involving embryos and foetuses more often, such as disputes over in vitro embryos. The lack of legal precedent could result in contradictory resolutions, therefore, the law should clarify the legal status of embryos and foetuses and accord to prenatal life special respect and treatment.

Many arguments have been made against gene editing. This paper addresses the commonly invoked argument that gene editing violates human dignity and is ultimately a subversion of human nature. There are several drawbacks to this argument. Above all, the concept of what human dignity means is unclear. It is not possible to condemn a practice that violates human dignity if we do not know exactly what is being violated. The argument’s entire reasoning is thus undermined. Analyses of the arguments involved in this discussion have often led to the conclusion that gene editing contravenes the principle of genetic identity (genetic immutability) thereby subverting a requisite of human dignity and ultimately threatening human nature. This paper refutes these arguments and shows that any opposition to gene editing cannot rely on the human dignity argument.

Although Chinese law imposes informed consent for medical treatments, the Chinese understanding of this requirement is very different from the European one, mostly due to the influence of Confucianism. Chinese doctors and relatives are primarily interested in protecting the patient, even from the truth; thus, patients are commonly uninformed of their medical conditions, often at the family’s request. The family plays an important role in health care decisions, even substituting their decisions for the patient’s. Accordingly, instead of personal informed consent, what actually exists is ‘family informed consent’. From a Western perspective, these features of Chinese law and Chinese culture might seem strange, contradicting our understanding of doctor-patient relationship and even the very essence of self-determination and fundamental rights. However, we cannot forget the huge influence of cultural factors in these domains, and that ‘Western’ informed consent is grounded on the individualistic nature of Western culture. This article will underline the differences between the Western and the Chinese perspectives, clarifying how each of them must be understood in its own cultural environment. But, while still respecting Chinese particularities, this paper advocates that China adopt patient individual informed consent because this is the only solution compatible with human dignity and human rights.

Most courts around the world have been refusing wrongful life actions. The main argument invoked is that the supposed compensable injury cannot be classified as such, since life is always a blessing no matter how hard and painful it is.In opposition to mainstream scholars and the dominant case law, this article sustains that life must be distinguished from living conditions, the former being the real injury at stake, since some living conditions are so intolerable that in themselves they justify a compensation within wrongful life actions.