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现代基因科技的发展带来了一个值得研究的法学课题:患者与其血亲亲属对其共有的基因状况存在着“隐私权”与“知情权”之间的冲突:如果患者经由“基因检测”等途径被发现具有基因缺陷,其血亲亲属基于与患者相近的基因状况也可能具有同样的基因缺陷;患者不希望任何人获得自己在未来可能患上某种疾病的信息,以免在申请保险和工作等情况下受到歧视;而其血亲亲属希望及早知道自己具有某种基因缺陷的情况,以及早采取预防和治疗措施。医生在发现患者具有基因缺陷时,会面临保护患者隐私或保护其血亲亲属身体健康的两难选择。本文考察了法律要求医生承担的两种相互对立的义务:保护患者隐私的义务和保护第三人免受患者病情或行为威胁的义务,特别是详细分析了有关要求医生在患者患有传染病时,保护他人健康的判例,指出鉴于基因缺陷所独有的特点,如其在预测作用上的不确定性、获知基因缺陷后可能造成的严重心理压力等,现有法律和判例中确立的原则不适用解决医生在基因时代面临的两种义务的冲突。在分析了目前国际上提出的各种解决方案之后,本文提出:不应由医生决定是否向患者血亲亲属披露患者的基因缺陷;应成立一个由医学和心理学方面专家组成的专业委员会,在接到医生报告后决定是否披露,并在决定披露时向患者亲属提供心理咨询和辅导。
The development of modern gene technology has brought a legal issue worthy of study: there is a conflict between “privacy” and “right to information” for the gene status shared by patients and their blood relatives: if the patient passes “ Genetic testing ”and other means were found to have genetic defects, their blood relatives based on gene status similar to the patient may also have the same genetic defects; patients do not want anyone to get their own future may have a disease information, so as not to Applying for insurance and work, and their blood relatives want to know early that they have a genetic defect and to take early preventive and curative measures. When doctors find that patients have genetic defects, they face the dilemma of protecting the privacy of patients or protecting the health of their blood relatives. This article examines two mutually conflicting obligations the law requires of a physician: the duty to protect the privacy of patients and the obligation to protect a third person from the condition or threat of action of a patient, and in particular to analyze in detail the requirements for a doctor to be required when the patient has an infectious disease , To protect the health of others, pointing out that given the unique characteristics of genetic defects, such as its predictive role in the uncertainty of the genetic defects that may cause serious psychological stress, the existing laws and jurisprudence established in the law does not apply Resolve the conflict between the two obligations physicians face in the Gene era. After analyzing various solutions proposed by the international community, the article proposes that doctors should not decide whether to disclose the genetic defects of patients to their relatives. A professional committee composed of experts in medicine and psychology should be established. After the doctor reports to decide whether to disclose, and in the decision to disclose to the relatives of patients to provide psychological counseling and counseling.