Right to try? Phosphoethanolamine, di Bella and Stamina cases: an Italo-Brazilian analysis

Abstract

This paper reports on an analysis of court orders that determine experimental therapies and provides a comparative study of the Italian Di Bella and Stamina cases and the Brazilian Phosphoethanolamine case. The judicial sentences on the three cases were considered, along with their medical outcome and media repercussion. As a result of the comparison, it was observed that the Brazilian Constitutional Court is tending towards the non-recognition of a "right to try", even though the Court’s official opinion remains to be seen. In Italy, on the other hand, after the negative judicial and medical experience concerning two emblematic cases, the opinion of the Italian Constitutional Court seems to have changed, indicating that the State is no longer forced to provide experimental therapies through the public health system. In the scope of these judicial lawsuits that claim compassionate cures, the technical framework, represented by the good clinical practices guidelines, comes about as the "zipper" that binds together law, science and ethics.