Contact details
- Name:
- Professor Yoshihito Hasegawa
- Qualifications:
- PhD in Law, Hiroshima University, Japan, 7 March 2002 · MA in Law, Hiroshima University, Japan, 1 March 1998 · BA in Law, Kindai University, Japan, March 1996
- Position/Fellowship type:
- Visiting Research Fellow
- Fellowship term:
- 02-Oct-2023 to 30-Nov-2023
- Institute:
- Institute of Advanced Legal Studies
- Home institution:
- Kindai University
- Email address:
- haseyosi@jus.kindai.ac.jp
- Website:
- https://ials.sas.ac.uk/people/professor-yoshihito-hasegawa
Research Summary and Profile
- Research interests:
- Law
- Summary of research interests and expertise:
-
Humanities & social sciences, Civil law, Medical Law & Ethics
- Project summary relevant to Fellowship:
Study on the legal mechanism by which legal benefits arising from foetal therapy can be assigned to the foetus
The purpose of this study is to investigate the legal mechanism by which legal benefits arising from foetal therapy can be assigned to the foetus.
In Japan, there has been no previous study on foetal therapy from the view of medical law and ethics so far, excluding the current study of mine- ‘Is it possible to recognize the foetus as a person entitled to private rights when they are removed from the womb?’, JSPS, Grant-in-Aid for Scientific Research(C)”. Such situations might be encouraged to undermining the "equality under the law" for some foetus. Therefore, it is worthy of investigation whether the foetus can hold private rights equally.
CNN reported in 2016 that a baby was once removed from a mother's womb and underwent surgery, was returned to the womb, and was born twice in Texas, the United States. The report makes me think about a legal issue of whether the foetus can hold private rights when it underwent foetal therapy and was removed from its mother’s womb. The reason is because the capacity for a person to hold rights is recognized after a foetus has been completely separated from a mother, according to one popular interpretation of Japanese Civil Code Article3(1). However, if we keep this interpretation, the capacity to hold rights would be granted to a foetus removed from its mother’s womb, but denied to a foetus in utero. Thus, there is concern about differences in a legal status occurs between them.
Therefore, I will conduct research on the following points, (i) and (ii). Finally (iii), I would like to construct a theory under which the foetus can directly hold legal benefits, if it can be suggested from British common law that the foetus has enough standing to be the bearer of private rights.
(i) What discussions do you have on foetal therapy from the view of medical law and ethics in England?
(ii) In England, can the foetus be equally granted a legal status to hold private rights, irrespective of the surgical procedure?
However, although the legal theory in England may differ from Japanese in that medical care is administered on the N.H.S in England while it is on contract in Japan, I believe that the question of who should be entitled to legal benefits arising from foetal therapy is universal.
(iii) Can the foetus directly hold legal benefits arising from foetal therapy, if we shall deem to it as the beneficiary of a 'Third Party Beneficiary Contract, Japanese Civil Code Article537'?
The decision of Supreme Court of Japan stated medical care is based upon a contract between a patient and a doctor. As it is difficult for a foetus to be a party to a contract according to one popular interpretation of Article3(1), foetal therapy would be based upon a contract between a mother and a doctor. However, as foetal therapy is exclusively for the benefit of the foetus, we should develop an interpretation by which legal benefits arising from foetal therapy can be assigned to it.