Bioethics: Health Care Law and Ethics

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ISBN: 9780314154064 | 031415406X
Cover: Paperback
Copyright: 8/1/2004

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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.

Preface

Acknowledgements

Table of Cases

xxi

An Introduction to the Study of Ethics and Ethical Theories

(30)

Joan Gibson, Thinking About the ``Ethics'' in Bioethics

(5)

John Arras and Robert Hunt, Ethical Theory in the Medical Context

(17)

Note on the Application of Ethical Theories in Law

(1)

Note: New Theories of Bioethics Analysis and the Attack on ``Principlism''

(4)

Note on Codes of Ethics and Oaths

(1)

Oath of Hippocrates

(1)

Prayer of Maimonides

(1)

American Medical Association's Principles of Medical Ethics

(1)

Problem: Drafting a Professional Code of Ethics

(1)

Human Reproduction and Birth

(150)

Problem: Death During Pregnancy

(1)

When Does Human Life Become a ``Person''?

(15)

The Attributes of Personhood

(1)

Joseph Fletcher, ``Humanness,'' in Humanhood: Essays in Biomedical Ethics

(3)

Notes and Questions

(1)

C.R. Austin, Human Embryos: The Debate on Assisted Reproduction

(3)

Legal Recognition of The Beginning of Human Life

(1)

Constitutional Recognition

(2)

Statutory Recognition

(3)

Common Law Recognition

(3)

Medical Intervention in Reproduction

(112)

Limiting Reproduction

(1)

Government Prohibitions on Reproduction

(1)

Contraception

(1)

Abortion

(1)

Roe v. Wade

(3)

Notes and Questions

(3)

Planned Parenthood of Southeastern Pennsylvania v. Casey

(11)

Stenberg v. Carhart

(6)

Notes and Questions on Casey and Stenberg

(6)

Problem: The Partial Birth Abortion Ban Act of 2003

(3)

Note: The Freedom of Access to Clinic Entrances Act of 1994

(2)

Note: The Blurry Distinction Between Contraception and Abortion, and the Advent of Mifepristone (RU--486)

(2)

Sterilization

(4)

Tort Remedies for Failed Reproductive Control: Wrongful Birth, Wrongful Life and Wrongful Conception

(1)

Smith v. Cote

(8)

Notes and Questions

(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

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Bioethics: Health Care Law and Ethics

Summary

Table of Contents

Supplemental Materials