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35 Prophylactic Procedures forOrthopedic Pathologies
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ing or sometimes eliminating the disease progression and also becoming popular as a part of
the rediscovering the importance of public
healthcare in recent years.
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Ethical andLegal Dimensions
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ofProphylactic Surgery
ZeynepEsraTarakçıoğlu andİlhanÜzülmez
36
36.1 Introduction
Cancer is responsible for the death of one in
every six people worldwide [1]. In the distribution of cancer within itself, it is estimated that
3–20% of the cases are assumed to be linked to
some genetically inherited genes [2]. These genes
not only increase the risk of cancer, but also have
severe and fatal consequences. While breast or
ovarian cancer incidence in normal individuals,
one of the most well-known types of genetic cancer, varies between 1 and 12%, this probability
can reach up to 85–86% in people carrying
BRCA1 and BRCA2 genes. Therefore, identifying
the genes that inherently carry a potential cancer
risk can allow new opportunities to detect, prevent, and treat many diseases. Thanks to the rapidly emerging developments in biology and
medicine and the Human Genome Project,
genetic tests have started to be used as a novel
means of preventing diseases with their ability to
early diagnose a potential disease. Genetic test-
Z. E. Tarakçıoğlu
Division of Legal Studies, Department of Political
Science and Public Administration, Faculty of
Economics and Administrative Sciences, Hacettepe
University, Ankara, Turkey
e-mail: zeynepdilek@hacettepe.edu.tr
İ. Üzülmez (*)
Division of Criminal Law and Criminal Procedure,
Department of Public Law, Faculty of Law, Ankara
Hacı Bayram Veli University, Ankara, Turkey
e-mail: ilhan.uzulmez@hbv.edu.tr
ing refers to the medical examinations that aim to
reveal or detect the presence of a person’s hereditary diseases or predisposition to these diseases
either directly or indirectly by examining genetic
inheritance conditions [3, 4]. According to the
result of the test, an individual with a genetic predisposition to a given disease is provided with the
opportunity to plan for the future and with the
chance to prevent the adverse effects of the
disease.
Until recently, patients with a genetic predisposition to cancer were recommended follow up
for early clinical diagnosis and treatment, and in
some cases, the case ended up with chemotherapy. However, these approaches being inapplicable or ineffective in some types of cancer have
paved the road for the prophylactic surgical
method, one of the most important risk reduction
initiatives. In fact, prophylactic surgery is not a
recent one. However, it has been one of the frequently debated and implemented methods in
treating certain diseases [5]. The main factor that
leads this method to be frequently debated today
is that it poses some legal and ethical problems
despite its great success in reducing risk. Before
addressing these problems, it is necessary to consider what this method is briey. Prophylactic
surgery, also known as preventive surgery, is a
method that enables the risk to be signicantly
reduced or eliminated as a result of completely or
partially removing the organ on which cancer
may develop. After applying this method, mortality rates can be decreased by 89.5–100% [6–8].
© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021
O. N. Dilek et al. (eds.), Prophylactic Surgery, https://doi.org/10.1007/978-3-030-66853-2_36
435
436
Z. E. Tarakçıoğlu and İ. Üzülmez
With this method, it is aimed to prolong the
mean-life expectancy. However, the efciency of
this method on the quality of life varies from
individual to individual, which may be caused by
due to the genetic inheritance pattern problem of
the disease, in which the problem cannot be
sorted out by just removing organs. Some concomitant conditions may continue to be observed
in different ways in other organs and also due to
the psychological reasons and physical changes
observed post-surgery [6]. In this context, such
examples from a wide variety of spectrum as the
emergence of drug addictions, restrictions on
social and working life, the emergence of personal disabilities or deciencies, early menopause, depression, decreased sexual desire,
change of body perception, inability to have
child, and changes in family dynamics can also
be observed [6]. Especially concerning BRCA
genes, breast removal (mastectomy) causes a
serious change in body perception, and breast
implant surgery is frequently resorted to following prophylactic surgery [9]. The most important
setback of the intervention is that it is irreversible. Therefore, it is thought that the operation
should only be applied when the benets outweigh the risks [9]. However, the benets and
risks that can arise from this intervention are partially unknown. Even if the risk of mortality and
recurrence of cancer decrease following the surgical intervention in question, there are serious
social and psychological effects of such a large
surgical intervention. Such a difcult decision
that needs to be made considering the social and
psychological effects requires an ethical
approach, thus requiring a review from a legal
aspect. During this investigation, it is necessary
to look at the issue from the perspective of human
rights. Surgical intervention with a biomedical
origin is directly related to such fundamental
rights, as the right to life and condentiality
raises the legal obligation to protect human rights
and human dignity. In this context, we will rst
underscore the timeline, starting from the detection of genetic risk to the operation and the
accompanying problems that may arise at this
stage. Later, the application of the prophylactic
method and the post-intervention phase will be
examined legally. The reason why we examine
making such staging is that the ethical and legal
problems in question are mostly concentrated in
these two stages.
36.2 Detection ofGenetic Risk
Various legal and ethical problems may arise in
the stages, starting from genetic risk detection to
resort to the risk-reducing intervention. Since the
prophylactic intervention is a treatment applied
with the aim of providing medical relief, it gives
rise to a special relationship between the patient
and the doctor, together with some responsibilities specic to the nature of this emerging relationship. Respecting condentiality and the
obligation of illumination is of particular importance for these issues. Attributing a special meaning to these obligations results mainly from the
nature of the genetic information on which the
intervention is based, not from the intervention
procedures. Namely, the information obtained
from gene analysis belongs to the person’s identity and, therefore, must be protected [10].
However, using such information in an unfair and
harmful manner may give rise to more comprehensive consequences than the ordinary health
data itself. The European Court of Human Rights
concluded that DNA proles contain a large
amount of personal data [11]. Therefore, it is possible to use genetic information, which includes
comprehensive information about a person’s
belonging to a certain group and his/her health
status in parallel with discriminative purposes.
Indeed, the Nazis can be given as a historical and
real example of the abuse of genetic information
for the purpose of racism and genocide. Therefore,
the concept of “genetic exceptionalism” is used
by some authors to express that genetic information is different from other data related to health
[12, 13]. According to those who advocate this
view, genetic information is unique since it provides information about the person’s current and
prospective health status and the health status of
the family members, and even about the next gen-
36 Ethical andLegal Dimensions ofProphylactic Surgery
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437
erations [13–19]. An opposing view of which
approaches with suspicion toward this view states
that it is not possible theoretically and practically
to separate genetic information and health information from each other [20].
Such an assessment related to genetic information also bears noteworthy legal consequences.
If we accept that there is no difference between
genetic information and data related to health in
terms of qualication, international regulations
regarding the protection of health information
and data such as the European Charter of Patients’
Rights, the Amsterdam and Lisbon Declaration,
may be considered sufcient for the protection of
genetic information. However, in the event that a
possible difference is considered, genetic information will need to be specially protected.
Although there is no consensus on this matter,
some international conventions dwell on this subject. The rst of these is the Convention for the
Protection of Human Rights and Human Dignity
concerning Biology and Medicine, and the rst
binding international contract in its eld adopted
in 1997: Convention on Human Rights and
Biomedicine Agreement. It is clearly stated in
Article 11 of the related convention that no discrimination can be applied to anyone due to their
genetic inheritance. Another legal text that
directly prohibits genetic discrimination is the
Universal Declaration on the Human Genome
and Human Rights, released by UNESCO. In
Article 6 of this declaration, nobody can be discriminated against due to their genetic structure;
otherwise, in this case, some consequences that
may harm human rights, fundamental freedoms,
and human dignity can occur.
Nevertheless, the reection of discrimination
due to individuals’ hereditary characteristics on
existing human rights texts came to the agenda
later concerning the developments in genetics
[17]. For this reason, genetics is not explicitly
included as a reason for discrimination in such
essential human rights texts as the Universal
Declaration of Human Rights and the European
Convention on Human Rights (ECHR). However,
since the causes of discrimination are not conclusive in international conventions, they also cover
genetic discrimination. As can be seen, genetic
discrimination has been considered as an issue
that needs to be regulated in documents dealing
with human rights. In this regard, this issue is
regarded as a human rights issue in the international arena.
36.2.1 Protection ofGenetic
Information: Condentiality
Genetic discrimination is dened as discrimination observed against the individual or the individual’s family members due to real or perceived
differences other than the “normal” genotype
[21]. The most frequently expressed fear in individuals with genetic risk is the use of genetic
information in a way that may end up with discrimination [22]. Indeed, one of the areas where
abuse of genetic information has the most comprehensive consequences is the issue of discrimination. Due to hereditary characteristics,
individuals may not benet from equal conditions in decision-making processes in different
elds, such as health and life insurances, employment, custody, adoption, admission to a school,
or loan application [21]. Therefore, failure to protect information related to genetic diseases and
violation of condentiality may leave the individual as a victim in many life areas. The issue of
genetic discrimination, which has come to the
fore, especially in employment1 and insurance
law, has prompted some states to make special
arrangements regarding the issue [23]. In the
USA, for example, the regulations envisioned by
states in the 1970s on a federal basis were followed by such regulations as the Americans’
Disabled Americans Act (ADA) and American
Health Insurance and Portability and
Responsibility Act (HIPAA) [24, 25]. However,
1
The main reason for discrimination in the employment
eld is that employers want to work with healthy people,
believing that productivity will decrease and increase
costs. On the other hand, insurance companies use information about the health status of the insurant or the person
who wishes to be insured to protect and increase their
protability.
438
Z. E. Tarakçıoğlu and İ. Üzülmez
the Genetic Information Nondiscrimination Act
was adopted in 2008 since these regulations were
far from providing sufcient assurance.2 With
this law, discrimination based on genetic information was prohibited in health insurance and
working areas. It is possible to see similar regulations in some countries, such as Canada, England,
Austria, Germany, and Switzerland. For instance,
with the Genetic Diagnostics Act of 2009 in
Germany, the subject was specially regulated. It
was legally set forth that insurers shall not
demand genetic testing and also no information
about previous genetic tests
3
of the individuals
[26]. In Switzerland, The Bill regarding Genetic
İnvestigations in Humans, rules that insurance
companies shall not request genetic reviews or
use previous test results. However, it remains
doubtful how successful these regulations are in
protecting people’s condentiality with genetic
risk and preventing discrimination because
genetic tests are not the only source of information about individuals’ susceptibility to a certain
disease or risk. Indeed, some of the rst documented cases of genetic discrimination in
America include implications from the individuals’ particular family history [27]. However, we
previously stated that genetic testing includes
information about individuals and family members of the individuals as well. Some of the
arrangements mentioned above provide only protection for the insurant and remain silent about
using the insurant’s test result arrangements.
Even if employers and insurance companies are
prohibited from accessing genetic test results,
they may have some justied interests in accessing individuals’ health data. In this case, how
2
The use of genetic information is not clearly regulated in
the law in question. However, to investigate in terms of
discrimination, those who have genetic risk should be
evaluated as “disabled” under the law. Although the Equal
Employment Opportunity Commission (EEOC), which
determines the principles of implementation of the contract, was included under the title of disability, the subject
gave rise to various American doctrine debates.
3
In Article 18 of the mentioned law, an exception is stipulated for this rule regarding the high amount of insurance
contracts. Accordingly, test results can be taken into
account for life insurances exceeding 300,000 euros.
health data and genetic information can be separated is another problem that needs to be resolved.
Therefore, it seems possible for employers and
insurance companies to learn and use various
information sources about genetic risk despite
these regulations. For this reason, such various
segments as physicians and genetic counselors
with direct access to genetic information should
act more carefully than other health data of the
individuals in terms of keeping this information
condential. Otherwise, possible criminal and
legal consequences may arise since the patient’s
condentiality is severely breached.
Another issue that needs to be discussed in
terms of condentiality concerns the sharing of
genetic information with family members.
Undoubtedly, family members are most likely to
be affected by the individual’s test results at risk.
For this reason, it is thought that information
about the test results should be shared with family members. If the patient shares this information with his/her family or consents it to be
shared, no legal problem can be mentioned.
However, some patients may not consent to share
their information with various concerns like family dynamics, geographical and social distance,
and the test results being not related to family
members [28]. In this case, such things as how to
act and how to solve the legal and ethical problems may remain controversial. The focus of this
discourse is how to balance the patient’s condentiality with the overall interest of family
members. As is known, due to the trust relationship established between the patient and the doctor, the condentiality of the patient should be
respected. In this context, the medical evaluations about the patient should be condentially
conducted, and unless the nature of the disease
requires, the personal and family life of the
patient should not be interfered with [29].
Despite the person’s given consent, sharing
the genetic information with the family may lead
to violations of condentiality and, together with
some consequences, within an unknown scope.
It is also possible to inform the other family
members about the genetic risk to let them take
precautions against the possible disease, which
36 Ethical andLegal Dimensions ofProphylactic Surgery
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439
may require disclosure of special information
[16]. For this reason, many scholars believe that
the moral obligation to inform family members
about genetic risks lies upon the doctor’s side
[4]. However, it is not clear how to balance the
condentiality of the individual at risk and the
sharing of any information related to the individual. We believe that the balance that needs to
be established between the condentiality of the
individual at risk and the sharing of information
should be established following the conditions
of the concrete events, especially considering the
person’s family dynamics. For this reason, it
does not seem possible to give a precise answer
to this question covering all instances. Failure to
give an exact answer to this question gives rise to
an uncertain situation for physicians. It paves the
way for legal and ethical problems. Therefore, it
is imperative to regulate this issue with legal
regulations. Regarding the issue, if various
states’ legislation is examined, the general trend
is to protect condentiality [30]. The main difference among countries is observed in terms of
the scope of this protection. For example, France
and Sweden seek absolute consent and authority
for family members’ access to genetic information [31]. On the other hand, in countries such as
America, Austria, Japan, Singapore, Israel,
England, Canada, sharing genetic information
under certain conditions is deemed possible,
even if there is no individual consent. We see
that the difference lies in these exceptional cases.
Generally, the case of preventing death, illness,
or severe injury of family members has been
regulated as an exception. It is stated in Singapore
that the physician may have a legal responsibility to warn family members in the event of a serious genetic risk [32]. While Austria seeks
“serious” conditions, the USA and Canada refer
to “exceptional and compelling” conditions, and
Israel refers to “severe” conditions in such cases
[33]. Unlike other regulations, it is considered
sufcient to share New Zealand information
when it is relevant to family members [34]. It
should be noted that the regulations made in the
international arenas on the subject are in the
same direction. The Committee of the Council of
Europe adopted the principle of not disclosing
personal information in principle 9 of recommendation numbered R (92) 3 on 10.02.1992.
However, it was stated that this rule could be
exempted if there are severe genetic risks for
other family members. As can be seen, while
many legal regulations have adopted condentiality as an important rule, they brought an exception to this rule in cases where serious and severe
consequences could occur for family members’
interest. Therefore, the general tendency is to
protect neither absolute condentiality nor third
parties. In terms of the concrete event, the individual or the committee (which may be a physician or ethics committee) will try to set between
these two values. In our opinion, conducting
such an investigation based on a concrete event
will ensure that the conditions in which the individual undergoing genetic testing will also be
taken into account [35].
36.2.2 Illumination andConsent
After determining the genetic risk, another issue
that may raise legal and ethical problems is the
obligation of illumination. The patient’s rights
over his/her body require that the person should
be the determining party during a medical intervention. Therefore, consent is sought as a prerequisite to say that medical interventions are lawful.
In such interventions, the necessity of seeking
consent as a source of lawfulness is considered
necessary not only in terms of law, but also in the
ethical evaluation of the issue. However, for the
consent given for the intervention to be valid, the
patient must be thoroughly and detailedly illuminated. The obligation of illumination can be
briey dened as a necessity to provide the
required information to the individual who will
undergo the physician’s procedure before any
medical intervention is planned. In this context, if
the patient does not accept the recommendation,
the physician must convey the consequences of
various treatment modalities and their benets as
well as the risks and possible complications. It
should also be mentioned that the test result
440
Z. E. Tarakçıoğlu and İ. Üzülmez
indicates an existing risk rather than an existing
disease, especially in cases of genetic diagnosis
because some patients may tend to consider the
results of genetic testing as an irreversible indication, which may affect the decision-making
phase. Therefore, in interventions based on
genetic testing, physicians should be more
sensitive about the patient’s illumination and
should obtain the patient’s consent within this
framework. However, prophylactic surgery is a
frequently used method, especially for genetically transmitted diseases, but it is also a method
that can be brought to the agenda with the increasing risk in many diseases that do not exhibit
hereditary transition cause cancer. For example,
the gallstones of a patient who has no complaint
related to gallbladder can be removed from gallstones during surgery. However, in order for this
intervention to be accepted as lawful, physicians
must obtain the patient’s consent by illuminating
the patient before the intervention from a perspective that there are stones in the gall and that
this may cause serious problems in the future.
Otherwise, the prevention and elimination of a
risk detected during the operation without the
patient’s consent may end with some outcomes
for the physician’s side.
Another point to consider when it comes to
risk reduction methods is the probability that this
method may not eliminate potential risk and that
the presence of risk may prevail, though in a
decreasing trend. This is more important in prophylactic surgery, which has severe social, psychological, and physical results. As mentioned
earlier, the method mentioned above requires
removing a potential risk but at the same time
healthy organ, which can lead to irreversible and
irrecoverable consequences. Those with a large
intestine may have to wear a lifetime colostomy
bag, and patients who receive a pancreas may
have to use insulin medicine for a lifetime,
women may lose their reproductive ability, and
children who have their thyroid removed may be
forced to use drugs for life. For this reason, physicians should convey the results of alternative
treatments and irrecoverable results to the
patients, considering their age and marital status.
However, the physician must express his/her
thoughts on the application of the prophylactic
method to the patient explicitly because the
researches show that the decision-making process for the prophylactic method is especially
difcult for women and open to be affected due
to the familial nature of the genetic test [36].
After Angelina Jolie underwent a bilateral prophylactic mastectomy, this surgical procedure’s
demand has increased signicantly among
women [8]. This situation reveals that although a
positive development occurs for women with
genetic risk, the individual may not always make
an objective decision during the decision-making process. Therefore, physicians should clearly
demonstrate the potential risks and the benets
to be obtained at the end of the operation.
However, it may not always be possible to reveal
the benets and risks in the prophylactic method,
as it is implemented not to improve the current
health condition, but to protect against prospective diseases [37]. Consequently, due to this
method’s nature, the scope of the obligation of
illumination expands. It leaves the responsibility
to the physician’s side in terms of giving detailed
information about the purpose and application of
the intervention in addition to the risks and benets. However, the patient, who does not want
the application of this method for various reasons, should also be informed about the disadvantages and alternative methods that can be
followed. Otherwise, it can be speculated that
the physician has not fully fullled the obligation of illumination. A doctor who recommended
a test that should be performed concerning the
diagnosis of cancer in a case in America, who at
the same time did not illuminate the patient
about the drawbacks of refusing to take the test,
was found faulty as the patient died of cancer
[38]. The decision in question is the rst decision that imposes responsibility on a physician
for an act of neglect without any physical intervention [39]. Of course, the physician cannot
inform about the intervention process and afterward, with all of the risks and benets. For this
reason, the point that is important in terms of the
obligation of illumination should be to bring the
36 Ethical andLegal Dimensions ofProphylactic Surgery
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patient to a position, where he/she gives the decision about his/her future with his/her own will,
considering the risks and the benets he/she can
get. For this, it should be stated that the physician has the duty of providing consultation about
all material risks that a reasonable person would
like to be informed about before making a decision [39].
36.3 Implementation
ofProphylactic Method
andPost-intervention
The main issue to be considered regarding the
prophylactic method, which aims a risk reduction, is in compliance with the subject in question
with the concept of lawfulness. As is known,
interventions other than medical necessities can
damage a person’s body integrity. For this reason,
only the medical interventions considered compulsory according to medical science, namely
those based on indication, are considered lawful.
Therefore, there should be a legal or medical
ground that justies why the physician initiates
the diagnosis and treatment process. However,
with its primary aim of preventing disease rather
than healing it, the prophylactic method comes to
the fore. It gives rise to debates in terms of lawfulness because the application of such an intervention with the potential to create serious
physical, psychological, and social problems
based merely on the patient’s consent with no
indication can put the physician under criminal
and legal responsibility.
The point that medical science has reached
today causes the indication to be discussed and
interpreted again. The obligation of indication,
which was previously regarded as one of the
basic elements of medical intervention, has
expanded as a concept with modern medicine
development. Therefore, a reconsideration of
social and psychological causes within the indication concept has started [40]. It has been even
argued that the patient’s consent could replace
the indication [29]. According to this view advocated in the German doctrine, consent, in the
absence of an indication, allows the intervention
to be legitimate, only when it ts within morality
and manners, not harming the addressee and
complying with the duty of care [41]. According
to the opinion mentioned earlier, consent and
indication are not cumulative but alternative criteria of medical intervention. In our opinion, it
does not seem possible to agree with this view.
The rule of law has not vested the people with the
right to dispose of their lives and bodily integrity
as they wish. The law also undertakes the duty to
protect people event against their own will.
Therefore, the consent of the victim only makes
the medical intervention legitimate when the
indication is present. For this reason, it is necessary to make special legal regulations for such
controversial situations as organ and tissue transplantation, esthetic operations with no indication
in terms of legality, and legitimacy of the intervention [
42]. In the study in question, consent
and indication were accepted as cumulative conditions that make medical intervention legitimate
and evaluated accordingly.
Since the discussion on the concept of indication exceeds this study’s scope, it should be contented with giving brief information on the
subject. Although the prophylactic method does
not aim to treat an existing disease or to prevent
a potential danger to be caused by it, it is intended
to eliminate the potential risk that a person may
encounter as a result of a genetic anomaly. In
this regard, the reason for the application of the
said method is the protection of the individual at
risk. Therefore, given the meaning of the concept of indication today, it should be accepted
that the concept covers not only the measures to
eliminate the disease, but also diagnostic and
preventive interventions along with it.
Interventions that are mandatory for diagnosis,
treatment, and protection are accepted as indications in the doctrine. In this respect, it should be
accepted that the prophylactic method, which
serves to reduce the risk and thus protects the
patient from the disease which has the potential
to develop in the late stages, also provides the
indication requirement. Besides, due to the positive effects of the method in question on psy-
442
Z. E. Tarakçıoğlu and İ. Üzülmez
chology, it is also possible to evaluate it within a
psychological indication.4 However, at this
point, it should be stated that the social or psychological indication should be based on concrete data. In a good example of a decision on
the related matter, New York Supreme Court
ruled that a psychological condition that might
give rise to a medical necessity was not enough
to justify the procedure of a bilateral mastectomy surgery aimed at eliminating gynecomastia
symptoms. Although the 17-year-old had experienced emotional distress and depression due to
symptoms, the court ruled that no psychiatrist,
psychologist, or medical specialist, including the
pediatrician, had been consulted, thus ruling that
the feeling of embarrassment was not sufcient
alone for medical necessity [43, 44].
Considering the legal regulations and decisions regarding the concept of indication, we can
say that the aim of protection and prevention is
also included. An exemplary regulation in this
regard can be given from Turkish law. The purpose of diagnosis, treatment, and protection is
considered a medical requirement in the third
paragraph of the 13th Article of the Medical
Deontology Regulation and the 12th Article of
the Patient Rights Regulation. Another example
can be given in American law. In the California
Welfare and Institutions Code 14059.5, the concept of medical necessity is dened as follows:
“A service is medically necessary or a medical
necessity when it is reasonable and necessary to
protect life, to prevent signicant illness or signicant disability, or to alleviate severe pain.”
Florida District Court of Appeals dened the
concept of medical necessity in Gallagher Bassett
Services, Orlando v. Mathis decision as:
“Medically necessary” or “medical necessity”
means any medical service or medical supply,
which is used to identify or treat an illness or
injury, is appropriate to the patient’s diagnosis
4
According to Gürelli, it can be accepted legitimate to correct a disorder of the organ from which this disorder originates to correct mental disorders stemming from organic
origin. At the same time, surgery and interventions aimed
at changing the symptoms with psychiatric indications
should be considered unlawful.
and status of recovery and is consistent with the
location of service, the level of care provided,
and applicable practice parameters. The service
should be widely accepted among practicing
healthcare providers, based on scientic criteria,
and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature [45]. Although the aim of
protection is not mentioned in the decision in
question, it is claimed in the related doctrine that
preventive medical interventions have “an indirect aim of treatment” [40, 41, 46]. Therefore, the
concept of treatment can be dened as the whole
of measures taken, medications, or surgical interventions to reduce the risk of a disease, as well as
to eliminate and cure a disease [47]. In this
respect, discussions on prophylactic interventions depend on the meaning to be attributed to
the concept of treatment. At this point, it is necessary to state that there are court decisions that
consider individuals’ carrying genetic risk as a
disease [48]. Suppose the approach followed in
the court decisions in question is adopted. In that
case, the indication will not need to be separately
discussed since the prophylactic method can be
started to be considered therapeutic because there
is an existing disease. However, since there is no
consensus neither in America nor internationally,
it is necessary to evaluate whether the obligation
of indication exists before applying each prophylactic method. The physician cannot apply such a
surgical method to remove a healthy organ as
prophylactic surgery without concrete data
revealing the indication. Otherwise, the intervention will not be considered lawful, and the physician will be held deliberately responsible for his/
her actions.
In addition to the interventions caused by
genetic risk, sailors who are about to sail away or
go mountain climbing to a country with poor
health services sometimes resort to prophylactic
appendectomy as a preventive measure in their
expeditions exploring space or the north pole
[37]. In this case, since there is no genetic factor
that tends to develop into a disease, it is seen that
the obligation of indication remains uncertain.
For this reason, it is suggested that prophylactic
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