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Published online by Cambridge University Press: 24 February 2021
In the past several decades, the problems facing those of us who labor in the vineyards of health policy and ethics have been the problems of success — first medicine's and then, though to a lesser extent, our own. By this I mean that it has been the remarkable fruits of biomedicine, from research to health care delivery, that have produced the rich harvest of ethical, social and legal issues that have drawn our, and society's, attention.
In the basic science laboratory, scientists have developed means to splice pieces of DNA together, raising questions from workplace safety to the reengineering of homo sapiens. Of more immediate concern, tests for genetic susceptibility to disease in one's self and one's offspring have been developed, thereby generating questions about employment and insurance discrimination, selective abortion, and adverse impacts on self-identity and well-being.
1 Steinbrook, Birth Defect Screening Plan Outlined By State; Voluntary Program Offers Blood Tests to Delect Malformed Fetuses, Includes Advice For Mothers, L.A. Times, Dec. 21, 1985, at 1, col. 2.
2 UNIF. ANATOMICAL GIFT ACT 8A U.L.A. (Supp. 1987).
3 UNIF. DETERMINATION OF DEATH ACT 12 U.L.A. (Supp. 1988).
4 Blakeslee, Baby Without Brain Kept Alive To Give Heart, N.Y. Times Oct. 19, 1987, at Al, col.4.
5 Id.
6 Task Force for the Determination of Brain Death in Children, Guidelines for the Determination of Brain Death in Children, 21 ANN. NEUROL. 616 (1987)CrossRefGoogle Scholar.
7 See, e.g., Harrison, , Organ Procurement for Children, 2 LANCET 1383 (1986)CrossRefGoogle Scholar; Capron, , Anencephalic Donors: Separate the Dead from the Dying, 17 HASTINGS CENTER REP. 5 (Feb. 1987)CrossRefGoogle Scholar.
8 154 Cal. App. 2d 560, 317 P.2d 170 (1957).
9 Beecher, , Ethics and Clinical Research, 274 N. ENG. J. MED. 1354 (1966)CrossRefGoogle Scholar.
10 Id. at 1360.
11 U.S. Pub. Health Serv., Clinical Research and Investigation Involving Human Beings, Policy and Procedure Order No. 129 (Feb. 8, 1966).
12 Ethical Aspects of Experimentation with Human Subjects 98 DAEDALUS 219-597 (1969).
13 J. Katz with the assistance of A. Capron and E. Glass EXPERIMENTATION WITH HUMAN BEINGS: THE AUTHORITY OF THE INVESTIGATOR, SUBJECT, PROFESSION, AND STATE IN THE HUMAN EXPERIMENTATION PROCESS (1972).
14 See, e.g., Hearings Before the Subcomm. on Public Health and Environment on Biomedical Research, 93rd Cong., 2d Sess. (1974); Oversight Hearings Before the Subcomm. on Health on Biomedical Research and Human Experimentation, 93rd. Cong., 1st Sess. (1973).
15 See, e.g., HEW, STERILIZATION DURING FY73 IN THE MONTGOMERY, ALA., COMMUNITY ACTION AGENCY's FAMILY PLANNING PROJECTS 1570-71 (memo); HEW, THE INSTITUTIONAL GUIDE TO DHEW POLICY ON PROTECTION OF HUMAN SUBJECTS 527-55.
16 274 U.S. 200(1927).
17 316 U.S. 535(1942).
18 367 U.S. 497(1961).
19 381 U.S. 479, 485-86 (1965).
20 410 U.S. 113 (1973).
21 Id at 162-63.
22 Battersby, South Africa Woman Gives Birth to 3 Grandchildren, N.Y. Times Oct. 2, 1987 at A9, col. 1.
23 Id at col. 2.
24 U.S. NATIONAL COMMISSION FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIORAL RESEARCH Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subject of Research (1978)(hereinafter The Belmont Report).
25 W. SHAKESPEARE, A MIDSUMMER NIGHT's DREAM 346 (S. Wells & G. Taylor eds. 1986).
26 See, e.g.. District 27 Community School Bd. v. Board of Educ. of the City of N.Y., 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986).
27 29 U.S.C. § 794 (1973).
28 29 U.S.C. § 706(7)(B) (1973); Accord Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (CD. Cal. 1987); but see U.S. Dep't of Justice, Office of Legal Counsel, Memorandum on the Application of Sec. 504 to Claims of Employment Discrimination (June 23, 1986), AIDS POLICY & LAW 1 (July 2, 1986).
29 AMA, REPORT OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, ETHICAL ISSUES INVOLVED IN THE GROWING AIDS CRISIS 4 (1987)(a physician “may not ethically refuse to treat a patient whose condition is within the physician's current realm of competence” merely because the patient has AIDS or is peropositive); accord ANA COMMITTEE ON ETHICS, STATEMENT REGARDING RISK VERSUS RESPONSIBILITY IN PROVIDING NURSING CARE 1 (1986).
30 Gerberding, J.L., et al., Risk of Transmitting the Human Immunodeficiency Virus, Ctyomegalovirus, and Hepatitis B Virus to Health Care — Workers Exposed to Patients with AIDS and AIDS-related Conditions, 156 J. INFECT. DISEASES 1–8 (July 1987)CrossRefGoogle Scholar.
31 Editorial, Altruism, Self-interest, and Medical Ethics, 258 J.A.M.A. 1939. 1939-40 (1987)CrossRefGoogle Scholar.
32 Barnes, , New Questions About AIDS Test Accuracy, 238 SCIENCE 884, 885 (1987)Google Scholar.
33 CAL. HEALTH & SAFETY CODE § 289.7 (West Supp. 1988).
34 National Sickle Cell Anemia Control Act, Pub. L. No. 92-294, § 1103, 86 Stat. 136, 138 (1972).
35 Physical harms may result if HIV antibody-positivity makes it more difficult for the person to obtain medical care. See supra notes 30-31 (doctors refusing patients).
36 See D. CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987).
37 See Roe v. Wade, 410 U.S. 113, 153 (1973).
38 The same also may be said, though perhaps less convincingly, for the semi-voluntary screening that occurs as a result of a blood donation; that screening rests, of course, on the much stronger ground of protecting the health of patients who need blood transfusions.
39 J. KATZ supra note 13.
40 Bouvia v. Superior Ct., 225 Cal. Rptr. 297, 179 Cal. App. 3d 1127 (1986).
41 Id. at 307-08, 179 Cal. App. 3d at 1147-48 (Compton, J., concurring).