Bioethics and the Law EDITORIAL ADVISORS Vicki Been Elihu Root Professor of Law New York University School of Law Erwin Chemerinsky Dean and Distinguished Professor of Law University of California, Irvine, School of Law Richard A. Epstein James Parker Hall Distinguished Service Professor of Law University of Chicago Law School Peter and Kirsten Bedford Senior Fellow The Hoover Institution Stanford University Ronald J. Gilson Charles J. Meyers Professor of Law and Business Stanford University Marc and Eva Stern Professor of Law and Business Columbia Law School James E. Krier Earl Warren DeLano Professor of Law The University of Michigan Law School Richard K. Neumann, Jr. Professor of Law Hofstra University School of Law Robert H. Sitkoff John L. Gray Professor of Law Harvard Law School David Alan Sklansky Professor of Law University of California at Berkeley School of Law Kent D. Syverud Dean and Ethan A. H. Shepley University Professor Washington University School of Law Elizabeth Warren Leo Gottlieb Professor of Law Harvard Law School Bioethics and the Law Second Edition Janet L. Dolgin Jack and Freda Dicker Distinguished Professor of Health Care Law Hofstra University School of Law Lois L. Shepherd Center for Biomedical Ethics and Humanities Professor of Law Associate Professor, Public Health Sciences University of Virginia Law & Business AUSTIN BOSTON CHICAGO NEW YORK THE NETHERLANDS # 2009 Aspen Publishers. All rights reserved. http://lawschool.aspenpublishers.com No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Requests for permission to make copies of any part of this publication should be mailed to: Aspen Publishers Attn: Permissions Department 76 Ninth Avenue, 7th Floor New York, NY 10011-5201 To contact Customer Care, e-mail [email protected], call 1-800-234-1660, fax 1-800- 901-9075, or mail correspondence to: Aspen Publishers Attn: Order Department PO Box 990 Frederick, MD 21705 Printed in the United States of America. 1234567890 ISBN 978-0-7355-7620-9 Library of Congress Cataloging-in-Publication Data Dolgin, Janet L., 1947– Bioethics and the law / Janet L. Dolgin, Lois L. Shepherd.—[2nd ed.] p. cm. Includes bibliographical references and index. ISBN 978-0-7355-7620-9 1. Medical laws and legislation—United States. 2. Medical care—Law and legislation—United States. 3. Bioethics—United States. I. Shepherd, Lois L., 1962– II. Title. KF3821.D65 2009 344.7304 01—dc22 2009002134 About Wolters Kluwer Law & Business Wolters Kluwer Law & Business is a leading provider of research information and workflow solutions in key specialty areas. The strengths of the individual brands of Aspen Publishers, CCH, Kluwer Law International and Loislaw are aligned within Wolters Kluwer Law & Business to provide comprehensive, in-depth solutions and expert-authored content for the legal, professional and education markets. CCH was founded in 1913 and has served more than four generations of business professionals and their clients. The CCH products in the Wolters Kluwer Law & Business group are highly regarded electronic and print resources for legal, secu- rities, antitrust and trade regulation, government contracting, banking, pension, payroll, employment and labor, and healthcare reimbursement and compliance professionals. Aspen Publishers is a leading information provider for attorneys, business profes- sionals and law students. Written by preeminent authorities, Aspen products offer analytical and practical information in a range of specialty practice areas from securities law and intellectual property to mergers and acquisitions and pension/ benefits. Aspen’s trusted legal education resources provide professors and students with high-quality, up-to-date and effective resources for successful instruction and study in all areas of the law. Kluwer Law International supplies the global business community with com- prehensive English-language international legal information. Legal practitioners, corporate counsel and business executives around the world rely on the Kluwer Law International journals, loose-leafs, books and electronic products for author- itative information in many areas of international legal practice. Loislaw is a premier provider of digitized legal content to small law firm practi- tioners of various specializations. Loislaw provides attorneys with the ability to quickly and efficiently find the necessary legal information they need, when and where they need it, by facilitating access to primary law as well as state-specific law, records, forms and treatises. Wolters Kluwer Law & Business, a unit of Wolters Kluwer, is headquartered in New York and Riverwoods, Illinois. Wolters Kluwer is a leading multinational publisher and information services company. In honor of my mother, in memory of my father, and in joyful gratitude for Aaron and our daughters, Ahuva, Shoshana, and Nava JLD To my parents, in appreciation of their steadfast support, and to Paul, Max, Summer, and Charlie, for their exuberance LS Summary of Contents Contents xi Preface xxxi Acknowledgments xxxiii PART I. Bioethics: Basic Concepts 1. Law, Medicine, and Philosophy 3 2. Autonomy and Bodily Integrity 45 3. Life 111 PART II. The Early Years 4. Assisting and Monitoring Reproduction 161 5. Children 257 6. Avoiding Reproduction: Sterilization, Contraception, and Abortion 337 PART III. Across the Lifespan 7. Human Subject Research and Experimental Health Care 401 8. Conflicts of Interest, Profits, Commerce 469 9. Access to Health Care 545 10. Public Health 625 PART IV. The Later Years 11. Aging 689 12. Dying 735 13. Death 837 Appendix A 867 Table of Cases 877 Index 881 ix Contents Preface xxxi Acknowledgments xxxiii PART I BIOETHICS: BASIC CONCEPTS — 1 — Law, Medicine, and Philosophy 3 A. HISTORY OF BIOETHICS AND ‘‘BIOLAW’’ 4 Charity Scott, Why Law Pervades Medicine: An Essay on Ethics in Health Care 7 Notes and Questions 12 B. PHILOSOPHICAL PRINCIPLES INFORMING BIOETHICS 13 1. Philosophical Ethical Theory 13 2. Utilitarianism 14 3. Kantianism 15 4. Liberal Individualism 17 5. Communitarianism 17 6. Ethics of Care 18 7. Bioethics Principles 18 8. ‘‘Critical’’ Perspectives 19 Rosemarie Tong, Feminist Approaches to Bioethics 20 Notes and Questions 25 C. RELIGION AND BIOETHICS 25 Report and Recommendations of the National Bioethics Advisory Commission, Cloning Human Beings 26 Notes and Questions 27 Challenging Issues: Applying Ethical Theory 29 D. ETHICS OF THE MEDICAL PROFESSION AND THE ‘‘BIOETHICS OF BIOETHICS’’ 30 1. Formalized Medical Ethics 30 Hippocratic Oath 31 xi xii Contents Notes and Questions 31 American Medical Association, Principles of Medical Ethics 32 David Orentlicher, The Influence of a Professional Organization on Physician Behavior 33 Notes and Questions 36 2. The Ethics of Bioethicists 37 E. THE HUMAN BODY, HEALTH, AND DISEASE 38 Kaja Finkler, Experiencing the New Genetics: Family and Kinship on the Medical Frontier 40 Notes and Questions 41 F. THE LIFESPAN APPROACH 42 — 2 — Autonomy and Bodily Integrity 45 A. INFORMED CONSENT 46 1. Bioethical and Social Perspectives 46 Peter H. Schuck, Rethinking Informed Consent 46 Notes and Questions 48 2. Legal Approaches 49 Miller-McGee v. Washington Hosp. Center 50 Culbertson v. Mernitz 52 Notes and Questions 55 Greenberg v. Miami Children’s Hospital Research Institute 60 Notes and Questions 63 Challenging Issues: Informed Consent and Autonomy 66 B. THE ABSENCE OF INFORMED CONSENT: COERCED TREATMENT AND TREATMENT OF PEOPLE UNABLE TO CONSENT 68 1. Patients Incapable of Giving Consent 69 a. Bioethical and Social Perspectives 69 Norman L. Cantor, The Permanently Unconscious Patient, Non-Feeding and Euthanasia 69 Notes and Questions 72 b. Legal Approaches 72 Blouin v. Spitzer 72 Notes and Questions 75 Challenging Issues: Informed Consent for Dental Care 75 2. Patients Who May or May Not Be Capable of Medical Decision Making 76 a. Bioethical and Social Perspectives 76 Contents xiii Stephen Hjelt, Informed Consent and Psychotherapy: Apples and Oranges in the Garden of Doctrine 76 b. Legal Approaches 77 Sell v. United States 78 Notes and Questions 80 Challenging Issues: National Tracking System 82 3. Competent Patients Whose Health Care Choices Are Questioned 83 a. Bioethical and Social Perspectives 83 Carol J. Gill, Health Professionals, Disability, and Assisted Suicide: An Examination of Relevant Empirical Evidence and Reply to Batavia 83 b. Legal Approaches 85 Bouvia v. Superior Court 85 Notes and Questions 85 Challenging Issues: Medical Decision Making 88 C. PRIVACY AND CONFIDENTIALITY 89 1. Bioethical and Social Perspectives 89 Paul Starr, Health and the Right to Privacy 89 Notes 92 Challenging Issues: Patient Privacy and Health Care Proxies 92 2. Legal Approaches 93 Horne v. Patton 93 Notes and Questions 95 Challenging Issues: Confidentiality and Potential Tissue/Organ Donors 102 D. ANATOMICAL GIFTS 102 1. Bioethical and Social Perspectives 102 William E. Stempsey, Religion, Philosophy, and the Commodification of Human Body Parts 102 Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs 104 Notes and Questions 106 Challenging Issues: Altruistic Donations 106 2. Legal Approaches 107 Wilson v. Adkins 107 Notes and Questions 108 — 3 — Life 111 A. THE BEGINNING OF LIFE: FETUSES AND EMBRYOS 112 1. Bioethical and Social Perspectives 112 Mary Ann Warren,