Bioethics: Health Care Law and Ethics

by Furrow, Barry R.

• ISBN13: 9780314154064
• ISBN10: 031415406X
• Edition: 1st
• Format: Paperback
• Copyright: 2004-08-01
• Publisher: West Academic

Summary

A spin-off publication of Health Law: Cases, Materials & Problems, 5th Edition, this casebook considers several subjects related to interdisciplinary health care decision-making issues, including research upon human subjects and institutional ethics committees. The materials are selected for their value in the classroom and the notes, questions, and comments prepare students for classroom discussion. The problems, which appear throughout the text, bring out the underlying substantive material in a realistic way. Includes sophisticated and lengthy notes to clarify issues. The book challenges those with legal, medical, and philosophical backgrounds, and is accessible to students without any background in bioethics.

Table of Contents

Preface	v
Acknowledgements	ix
Table of Cases	xxi
An Introduction to the Study of Ethics and Ethical Theories	1	(30)
Joan Gibson, Thinking About the ``Ethics'' in Bioethics	1	(5)
John Arras and Robert Hunt, Ethical Theory in the Medical Context	6	(17)
Note on the Application of Ethical Theories in Law	23	(1)
Note: New Theories of Bioethics Analysis and the Attack on ``Principlism''	23	(4)
Note on Codes of Ethics and Oaths	27	(1)
Oath of Hippocrates	27	(1)
Prayer of Maimonides	28	(1)
American Medical Association's Principles of Medical Ethics	29	(1)
Problem: Drafting a Professional Code of Ethics	30	(1)
Human Reproduction and Birth	31	(150)
Problem: Death During Pregnancy	31	(1)
When Does Human Life Become a ``Person''?	32	(15)
The Attributes of Personhood	33	(1)
Joseph Fletcher, ``Humanness,'' in Humanhood: Essays in Biomedical Ethics	33	(3)
Notes and Questions	36	(1)
C.R. Austin, Human Embryos: The Debate on Assisted Reproduction	36	(3)
Legal Recognition of The Beginning of Human Life	39	(1)
Constitutional Recognition	39	(2)
Statutory Recognition	41	(3)
Common Law Recognition	44	(3)
Medical Intervention in Reproduction	47	(112)
Limiting Reproduction	48	(1)
Government Prohibitions on Reproduction	48	(1)
Contraception	49	(1)
Abortion	50	(1)
Roe v. Wade	51	(3)
Notes and Questions	54	(3)
Planned Parenthood of Southeastern Pennsylvania v. Casey	57	(11)
Stenberg v. Carhart	68	(6)
Notes and Questions on Casey and Stenberg	74	(6)
Problem: The Partial Birth Abortion Ban Act of 2003	80	(3)
Note: The Freedom of Access to Clinic Entrances Act of 1994	83	(2)
Note: The Blurry Distinction Between Contraception and Abortion, and the Advent of Mifepristone (RU--486)	85	(2)
Sterilization	87	(4)
Tort Remedies for Failed Reproductive Control: Wrongful Birth, Wrongful Life and Wrongful Conception	91	(1)
Smith v. Cote	91	(8)
Notes and Questions	99	(5)
Assisting Reproduction	104	(1)
Problem: Reproductive Arrangements Go Awry	104	(1)
Introduction	105	(1)
The Process of Human Reproduction	105	(2)
The Role of the Law	107	(1)
Facilitating Reproduction and the Definition of the Family	107	(2)
Artificial Insemination	109	(1)
The Process of Artificial Insemination (or ``Intrauterine Insemination'')	109	(1)
Artificial Insemination---Homologous (AIH)	109	(1)
Artificial Insemination---Donor (AID)	110	(1)
Uniform Parentage Act (1973)	110	(1)
Uniform Parentage Act (2002)	111	(2)
Notes and Questions	113	(3)
In Vitro Fertilization, Egg Transfer and Embryo Transfer	116	(1)
The Process of In Vitro Fertilization and Related Techniques	116	(2)
Notes and Questions: The Status of the Parents	118	(1)
Davis v. Davis	119	(7)
Notes and Questions: The Status of the Embryo	126	(3)
Surrogacy	129	(1)
The Process of Surrogacy	129	(1)
In the Matter of Baby M	130	(4)
Notes and Questions	134	(3)
Johnson v. Calvert	137	(6)
Notes and Questions	143	(2)
Prato--Morrison v. Doe	145	(4)
Notes on Prato--Morrison v. Doe	149	(1)
Uniform Parentage Act (2002)	150	(2)
Notes and Questions	152	(1)
Cloning	153	(2)
Recommendations of the National Bioethics Advisory Commission (NBAC) with Regard to Cloning (1997)	155	(3)
Note: Reproductive and Therapeutic Cloning and Stem Cell Research	158	(1)
Bibliographical Note: Facilitating Reproduction	159	(1)
Fetal Maternal Decisionmaking	159	(22)
Problem: Children Bearing Children	159	(1)
In re A.C.	160	(6)
Notes and Questions	166	(7)
Guardianship of J.D.S.	173	(6)
Notes and Questions	179	(1)
Bibliographical Note	180	(1)
Legal, Social and Ethical Issues in Human Genetics	181	(28)
Introduction	181	(5)
Legal Responses	186	(23)
Privacy and Confidentiality of Genetic Information	189	(1)
Safer v. Pack	189	(4)
Notes and Questions	193	(1)
Problem: All in the Family	194	(1)
Discrimination Based on Genetic Traits	195	(1)
Insurance	195	(1)
Problem: Insurance Decisions	195	(1)
Notes and Questions	196	(1)
Employment	196	(2)
Problem: Preventing Harms?	198	(1)
Ownership of Genetic Information and Resultant Products	199	(1)
Greenberg v. Miami Children's Hospital Research Institute	199	(5)
Notes and Questions	204	(1)
Note on Government--Owned Biobanks and Joint Ventures for Commercial Development	205	(2)
Problem: Creating the Treasure Trove	207	(2)
Defining Death	209	(29)
Problem: When Does Death Occur?	209	(1)
Introduction	210	(1)
Note: Religious Perspective on Death	211	(1)
The Development of the ``Brain Death'' Definition	211	(8)
History	211	(3)
Uniform Determination of Death Act (1980)	214	(1)
Note: Brain Death and Homicide Statutes	215	(2)
Higher Brain Death	217	(2)
The ``Dead Donor'' Rule and Expanding Classes of Organ Donors---Anencephalic Infants and ``Non-Heart Beating'' Donors	219	(17)
Anencephalic Infants	219	(1)
In re T.A.C.P	219	(3)
Council on Ethical and Judicial Affairs, American Medical Association, The Use of Anencephalic Neonates as Organ Donors	222	(4)
Notes on the Use of Anencephalic Infants as Organ Donors	226	(2)
In re Baby K	228	(4)
Notes and Questions	232	(1)
Non--Heart--Beating Donors	233	(1)
Problem: Holy Central Hospital's Organ Harvesting Proposal	233	(2)
Note	235	(1)
Religious and Other Objections to Definitions of Death: Letting The Patient Decide Which Definition to Use	236	(2)
Life and Death Decisions	238	(170)
Introduction	238	(5)
Problem: Right to Die	241	(2)
The United States Constitution and the ``Right to Die''	243	(13)
Cruzan v. Director, Missouri Department of Health	243	(9)
Notes and Questions	252	(4)
The ``Right to Die''---Patients With Decisional Capacity	256	(17)
Problem: The Christian Scientist in the Emergency Room	256	(1)
The General Rule	257	(1)
Bouvia v. Superior Court	257	(4)
Notes and Questions	261	(3)
Note: Countervailing State Interests	264	(3)
Note: State Law Bases for a ``Right to Die''	267	(1)
The Right to Refuse Medical Treatment for Religious Reasons	268	(1)
Application of the President and Directors of Georgetown College, Inc	269	(1)
Notes	270	(1)
Public Health Trust of Dade County v. Wons	271	(1)
Notes	272	(1)
The ``Right to Die''---Patients Without Decisional Capacity	273	(68)
Determining Decisional Capacity	273	(1)
Problem: Determining the Decisional Capacity of a Dying Patient	273	(2)
Loren H. Roth, Alan Meisel, and Charles W. Lidz, Tests of Competency To Consent to Treatment	275	(3)
President's Commission for the Study of Ethical Problems in Medicine And Biomedical and Behavioral Research, Decisionmaking Capacity	278	(1)
Notes and Questions	279	(2)
Determining the Patient's Choice	281	(1)
A Statutory Framework for Health Care Decision Making: Advance Directives and Surrogate Decisionmakers	282	(1)
Uniform Health--Care Decisions Act	282	(8)
Notes on Advance Directives	290	(7)
Decisionmaking for Incompetent Patients in the Absence of a Governing Statute	297	(1)
Discovering the Patient's Wishes	297	(1)
In re Eichner	297	(2)
Note: Applying the Principle of Substituted Judgment	299	(1)
In re Conroy	300	(2)
Notes and Questions	302	(6)
Note: Choosing Futile Medical Care	308	(2)
Problem	310	(1)
The Role of the Courts and the Burden of Proof in Cases Involving the Decision to Forego Lifesustaining Treatment	311	(1)
Conservatorship of Wendland	311	(10)
Notes and Questions	321	(6)
Disputes Among Family Members Acting as Decision Makers	327	(1)
Guardianship of Schiavo	327	(3)
Note on the Legal and Political History of the Schiavo Case	330	(3)
Note: Wendland, Schiavo and the Role of the Court in Making Health Care Decisions for Those Without Capacity	333	(2)
Problem: Not Quite Persistent Vegetative State	335	(1)
Making Health Care Decisions for Patients Who Have Never Been Competent	336	(1)
Superintendent of Belchertown State School v. Saikewicz	336	(2)
In re Storar	338	(2)
Notes and Questions	340	(1)
The ``Right to Die''---Children and Newborns	341	(24)
Children	341	(1)
Problem: Choosing to Forgo Cancer Treatment	341	(1)
Newmark v. Williams	341	(6)
Notes and Questions	347	(4)
Newborns	351	(1)
Problem: Newborn With Spina Bifida	351	(1)
Note: Treating Seriously Ill Newborns	352	(3)
Miller v. HCA	355	(7)
Notes and Questions	362	(2)
Problem: Conjoined Twins	364	(1)
Physician Assisted Death	365	(33)
The Constitutional Framework	365	(1)
Washington v. Glucksberg	365	(11)
Vacco v. Quill	376	(3)
Notes and Questions	379	(8)
Legislation to Support Physician Assisted Death---``Death With Dignity'' Initiatives	387	(1)
The Oregon Death With Dignity Act	387	(5)
Oregon Department of Human Services, Office of Disease Prevention and Epidemiology, Fifth Annual Report on Oregon's Death with Dignity Act	392	(2)
Notes and Questions	394	(4)
Problem: Drafting Legislation	398	(1)
Regulation of End--of--Life Care: The Case of Medical Marijuana	398	(10)
United States v. Oakland Cannabis Buyers' Cooperative	398	(5)
Notes and Questions	403	(4)
Problem: Drafting Medical Marijuana Legislation	407	(1)
Regulation of Research Involving Human Subjects	408	(42)
The Nuremberg Code	408	(2)
Nuremberg Code: Permissible Medical Experiments	409	(1)
Notes and Questions	410	(1)
Regulation of Research Upon Human Subjects in the United States	410	(34)
History	410	(2)
Federal Regulation of Research	412	(1)
Problem: Is It Research?	412	(1)
45 C.F.R. Part 46	413	(7)
Notes and Questions	420	(2)
Research Regulation by Litigation: Protecting Vulnerable Subjects	422	(1)
Grimes v. Kennedy Krieger Institute, Inc	422	(10)
Notes and Questions	432	(2)
Note on Regulations Restricting Research on Other Vulnerable Populations	434	(3)
Note on Conflicts of Interest in Research	437	(2)
Problem: Conflicts or Not?	439	(1)
Reforming the System to Protect Research Participants	440	(1)
Responsible Research: A Systems Approach to Protecting Research Participants	440	(4)
Notes and Questions	444	(1)
International Regulation of Research Involving Human Subjects	444	(6)
Declaration of Helsinki, Ethical Principles for Medical Research Involving Human Subjects	445	(3)
Problem: The African and Asian AIDS Trials	448	(1)
Notes and Questions	448	(2)
Distributive Justice and the Allocation of Health Care Resources---The Example of Human Organ Transplantation	450	(23)
Introduction	450	(5)
Rationing of Scarce Human Organs	455	(6)
Problem: Selecting an Organ Transplant Recipient	455	(1)
Note: The Organ Procurement Transplant Network	456	(1)
Geographic Distribution of Organs	456	(1)
Listing Patients for Transplantation	457	(1)
Zero Antigen Mismatch and Disparate Impact by Race	458	(1)
Problem: Setting Priorities	459	(1)
Problem: State or Federal Control?	460	(1)
Increasing the Supply of Organs for Transplantation: The Impact of Legal Restraints	461	(12)
Newman v. Sathyavaglswaran	461	(4)
Notes and Questions	465	(2)
Note: Market Solutions to Organ Shortages	467	(2)
Problem: Organ Donation From an Adolescent	469	(1)
Note: Organs from Living Donors	470	(3)
Public Health and Bioterrorism	473	(28)
Introduction to Public Health Law	473	(3)
Barry Levy, Twenty--First Century Challenges for Law and Public Health	473	(2)
Notes	475	(1)
Problem	476	(1)
The Constitutional Foundation of Public Health Law	476	(7)
Jacobson v. Massachusetts	476	(4)
Notes and Questions	480	(3)
Problem	483	(1)
Forced Treatment, Isolation and Quarantine	483	(6)
Tuberculosis Control Units, Ohio Code § 339.80--.89 (2003)	484	(3)
Notes and Questions	487	(1)
Problem	488	(1)
Bioterrorism and Public Health	489	(12)
The Model State Emergency Health Powers Act	489	(5)
Lawrence O. Gostin, The Model State Emergency Health Powers Act: Public Health and Civil Liberties in a Time of Terrorism	494	(2)
George J. Annas, Blinded by Bioterrorism: Public Health and Liberty in the 21st Century	496	(2)
Notes	498	(3)
Index	501