Biomedical Ethics and the Law PDF
Preview Biomedical Ethics and the Law
Biomedical Ethics and the Law Biomedical Ethics and the Law Edited by James M. Humber and Robert F. Almeder Georgia State University, Atlanta PLENUM PRESS • NEW YORK AND LONDON Library of Congress Cataloging in Publication Data Main entry under title: Biomedical ethics and tbe law. Includes bibliographies and index. 1. Medical laws and legislation - Addresses, essays, lectures. 2. Medical ethics - Addresses, essays, lectures. I. Humber, James M. II. Almeder, Robert F. [DNLM: 1. Ethics, Medical - Collected works. 2. Jurisprudence - Collected works. W50 B615) Law 179'.7 76-12495 ISBN 978-1-4684-2225-2 ISBN 978-1-4684-2223-8 (eBook) DOI 10.1007/978-1-4684-2223-8 First Printing -July 1976 Second Printing -July 1977 © 1976 Plenum Press, New York Softcover reprint of the hardcover 1s t edition 1976 A Division of Plenum Publishing Corporation 227 West 17th Street, New York, N.Y. 10011 All rights reserved No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, microi1lming, recording, or otherwise, without written permission from the Publisher PREFACE In the past few years an increasing number of colleges and universities have added courses in biomedical ethics to their curricula. To some extent, these additions serve to satisfy student demands for "relevance." But it is also true that such changes reflect a deepening desire on the part of the academic community to deal effectively with a host of problems which must be solved if we are to have a health-care delivery system which is efficient, humane, and just. To a large degree, these problems are the unique result of both rapidly changing moral values and dramatic advances in biomedical technology. The past decade has witnessed sudden and conspicuous controversy over the morality and legality of new practices relating to abortion, therapy for the mentally ill, experimentation using human subjects, forms of genetic interven tion, suicide, and euthanasia. Malpractice suits abound and astronomical fees for malpractice insurance threaten the very possibility of medical and health-care practice. Without the backing of a clear moral consensus, the law is frequently forced into resolving these conflicts only to see the moral issues involved still hotly debated and the validity of existing law further questioned. In the case of abortion, for example, the laws have changed radically, and the widely pub licized recent conviction of Dr. Edelin in Boston has done little to foster a moral consensus or even render the exact status of the law beyond reasonable question. To take another example, only recently have we seen the veil of secrecy lifted in the area of experimenting with human subjects. Indeed, as this is being written, well-known and respected agencies of our government are 'being publicly scrutinized and severely cliticized for experimenting with drugs on human subjects without the informed consent of the subjects. And similar examples abound in areas involving forms of genetic intervention, therapy for the men tally-ill, and practices relating to euthanasia and proper care for the terminally ill. As profound as the social and moral changes in this country have been in the recent past, they are outstripped by recent scientific and technological advances in the biomedical field. Deformed and mentally disabled children who once would have died at birth can now be kept alive. Should such beings be allowed to live? Like problems also arise at the other end of the life cycle. Should a person be kept alive even if he wishes a peaceful and "dignified" death? And when is a person dead anyway? With the development of the heart-lung machine and intravenous feeding, a person's body can be kept functioning indefinitely, long after his brain has ceased showing any activity. Does one die when his brain dies? If not, when does one die? If so, how does one determine when the brain is dead? And then there are the moral and legal problems arising v vi PREFACE from recent advances in genetics. Take cloning, for example. Should we repro duce our geniuses and attempt to breed a superior race? We do it with tomatoes and livestock, so why not with humans? Who is to make such decisions and what standards are to be employed? In a milieu of shifting moral values, the conceptu al, moral, and legal problems generated by advances in scientific and medical technology are all the more perplexing and worthy of urgent attention. The problems faced by medical practitioners, researchers, and geneticists raise questions having social, moral, legal, philosophical, and theological implica tions. In a very real sense, then, the field of biomedical ethics is essentially interdisciplinary; and in constructing this anthology we have done our best to represent the interdisciplinary character of these problems. The book begins with an introduction by Professor Daniel Callahan, who discusses the area of bioethics as a discipline. The text itself is divided into five parts, each part being prefaced with a short introduction in which the theses of the various authors are briefly stated. Our division of the subject matter is not hard and fast, and the student will no doubt perceive that the problems dealt with in each part are interrelated. It is impossible to put together an anthology of this sort without the aid and assistance of many. However, we are especially indebted to our graduate student, Dexter Christian, for compiling the bibliographies at the end of each chapter, and to Mr. Thomas Lanigan of Plenum Press for his insightful suggestions and encouragement. Special thanks also go to our wives, Lynn and Virginia, whose patience and understanding make our work considerably easier than it might otherwise be. Georgia State University J.M.H. R.F.A. CONTRffiUTORS Professor Henry Aiken Professor Alexander M. Capron 110 Deacon Haynes Road University of Pennsylvania Concord, Mass. 01742 3400 Chestnut St. Philadelphia, Pa. 19174 David Bazelon, Chief Judge United States Court of Appeals Professor Arthur J. Dyck Washington, D.C. 20001 The Divinity School Harvard University Cambridge, Mass. 02138 Professor Thomas Beauchamp Philosophy Department Georgetown University Dr. Leon Eisenberg Washington, D.C. 20057 Harvard Medical School Department of Psychiatry Children's Hospital Medical Center Dr. Henry K. Beecher 300 Longwood Ave. Harvard Medical School Boston, Mass. 02115 10 Shattuck Street Boston, Mass. 02115 Rev. John C. Fletcher Professor Richard Brandt Inter/Met Theological Education Philosophy Department 1419 V. St., N.W. The University of Michigan Washington, D.C. 20009 Ann Arbor, Mich. 48104 Dr. Kurt Hirschhorn Professor Baruch Brody Mount Sinai School of Medicine Department of Philosophy The City University of New York Rice University Fifth Ave. and 100th St. Houston, Texas 77001 New York, N.Y. 10029 Dr. Daniel Callahan Institute of Society, Professor James Humber Ethics, & Ufe Sciences Department of Philosophy Hastings Center Georgia State University 623 Warburton Ave. University Plaza Hastings-on-Hudson, N.Y. 10706 Atlanta, Ga. 30303 vii viii CONTRffiUTORS Professor Hans Jonas Professor Herbert W. Richardson Department of Philosophy St. Michael's College New School for Social Research University of Toronto 66 West 12th St. Toronto 5, Canada New York, N.Y. 10011 Professor Jonas Robitscher Dr. Leon R. Kass School of Law The Joseph & Rose Kennedy Institute Emory University Center for Bioethics Atlanta, Ga. 30322 Georgetown University Washington, D.C. 20007 Dr. Michael Shimkin Department of Community Medicine Dr. Herbert Lubs School of Medicine Department of Pediatrics University of California at San Diego Univ. of Colorado Medical Center Wolla, Cal. 92037 4200 East Ninth Avenue Denver, Col. 80220 Professor Tracy Sonneborn Department of Zoology Professor Barbara MacKinnon Jordan Hall-224 Department of Philosophy Indiana University University Center, Room 538 BlOOmington, Ind. 47401 University of San Francisco San Francisco, Cal. 94117 Dr. Thomas Szasz Department of Psychiatry Professor Ruth Macklin Upstate Medical Center Philosophy Department 750 East Adams St. Case Western Reserve University Syracuse, N.Y. 13210 Cleveland, Ohio 44106 Professor Judith J. Thomson Dr. Robert Morison Department of Philosophy Box 277 Massachusetts Institute of Technology Peterborough, N.H. 03458 Cambridge, Mass. 02139 Professor Nicholas Rescher Professor Lawrence P. Ulrich Department of Philosophy Philosophy Department University of Pittsburgh University of Dayton Pittsburgh, Pa. 15213 Dayton, Ohio 45469 CONTENTS INTRODUCTION: Bioethics as a Discipline ...........................1 Daniel Callahan Further Readings ...............................................1 3 PART I: ABORTION Introduction ..................................................1 5 Roe v. Wade ..................................................1 7 Abortion and the Law ...........................................2 7 Baruch A. Brody A Defense of Abortion ......................................... .39 Judith Jarvis Thomson The Morality of Abortion ........................................5 5 Richard B. Brandt Abortion: The Avoidable Moral Dilemma ............................7 1 James M. Humber Further Readings ...............................................9 3 PART II: MENTAL ILLNESS Introduction ..................................................9 9 Psychiatric Intervention ........................................1 01 Leon Eisenberg The Myth of Mental Illness ......................................1 13 Thomas Szasz Mental Health and Mental Illness: Some Problems of Defmition and Concept Formation ............................................1 23 Ruth Macklin Involuntary Mental Hospitalization: A Crime Against Humanity ........ .151 Thomas Szasz Psychiatrists and the Adversary Process ............................ .173 David L. Bazelon Further Readings ..............................................1 83 PART III: HUMAN EXPERIMENTATION Introduction .................................................1 89 Ethics and Clinical Research .................................... .193 Henry K. Beecher ix x CONTENTS Scientific Investigations on Man: A Medical Research Worker's Viewpoint ...................................................2 07 Michael Sh,mkin Philosophical Reflections on Experimenting with Human Subjects ........2 17 Hans Jonas The Moral Justification for Research Using Human Subjects .............2 43 Arthur J. Dyck and Herbert W. Richardson Realities of Patient Consent to Medical Research .....................2 61 John Fletcher NIH Guidelines on Research with Human Subjects ....................2 77 Further Readings ..............................................2 99 PART IV: HUMAN GENETICS Introduction ................................................ .305 Ethical Issues Arising from the Possible Uses of Genetic Knowledge ...... .307 Tracy M. Sonneborn Implications of Prenatal Diagnosis for the Human Right to Ufe ......... .313 LeonR. Kass Implications of Prenatal Diagnosis for the Quality of, and Right to, Human Ufe: Society as a Standard ............................... .329 Robert S. Morison Practical and Ethical Problems in Human Genetics ................... .339 Kurt Hirschhorn Reproductive Rights and Genetic Disease .......................... .351 Lawrence P. Ulrich On Justifications for Coercive Genetic Control ...................... .361 Thomas L. Beauchamp Legal Rights and Moral Rights ....................................3 75 Alexander M. Capron Privacy and Genetic Information ................................. .399 Herbert A. Lubs Further Readings ..............................................4 15 PART V: DYING Introduction .................................................4 23 The Problems in Prolongation of Ufe ..............................4 27 Jonas Robitscher The Allocation of Exotic Medical Ufesaving Therapy ................. .447 Nicholas Rescher CONTENTS xi life and the Right to Life .......................................4 65 Henry David Aiken Dying •.....................................................4 77 Robert S. Morison A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal .....................................4 89 Alexander M. Capron and Leon R. Kass Death: Process or Event? ....................................... .523 Barbara MacKinnon Further Readings ............................................. .533 Index .......................................................5 39
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