Law Commons^™

“Dignity In Living And In Dying”: The Henry H. H. Remak Memorial Lecture, George P. Smith Ii

Scholarly Articles

Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation in today's post secular society are, however, subject to wide discussion and debate; for the term, human dignity, and its preservation, defies universal agreement. Yet, its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from recognizing and protecting the civil rights of the citizen members of the LGBTQ community throughout the nation to the care of the disabled and to the dying.

In clinical medicine, safeguarding …

Applying Bioethics In The 21st Century: Principlism Or Situationism?, George P. Smith Ii

Scholarly Articles

After an examination of the four cardinal bioethical principles which define Principlism — autonomy, beneficence, non maleficence and justice — an explication of Joseph Fletcher’s theory of Situationism is undertaken.

The conclusion of this Article is that when an ethical dilemma arises and is “tested” as to its moral efficacy, rather than judge the acts in question in order to determine whether they are in conformance with one of the four bioethical principles, it is more humane and practical to determine the ethical propriety of questioned conduct by use of a situation ethic which in fact is more sensitive. This …

Gently Into The Good Night: Toward A Compassionate Response To End-Stage Illness, George P. Smith Ii

Scholarly Articles

End-of-life decision making by health care providers must respect individual patient values. Indeed, these values must always be viewed as the baseline for developing and pursuing patient-centered palliative care for those with terminal illness. Co-ordinate with this fundamental bioethics principle is that of beneficence or, in other words, respect for conduct which benefits the dying patient by alleviating end-stage suffering — be it physical or existential. Compassion, charity, agape and/or just common sense, should be a part of setting normative standards and of legislative and judicial responses to the task of managing death. Aided by the principles of medical futility, …

Refractory Pain, Existential Suffering, And Palliative Care: Releasing An Unbearable Lightness Of Being, George P. Smith Ii

Scholarly Articles

Since the beginning of the hospice movement in 1967, “total pain management” has been the declared goal of hospice care. Palliating the whole person’s physical, psycho-social, and spiritual states or conditions is central to managing the pain which induces suffering. At the end-stage of life, an inextricable component of the ethics of adjusted care requires recognition of a fundamental right to avoid cruel and unusual suffering from terminal illness. This Article urges wider consideration and use of terminal sedation, or sedation until death, as an efficacious palliative treatment and as a reasonable medical procedure in order to safeguard the “right” …

Bioethics And Human Rights: Toward A New Constitutionalism, George P. Smith Ii

Scholarly Articles

No abstract provided.

Of Panjandrums, Pooh Bahs, Parvenus, And Prophets: Law, Religion, And Medical Science, George P. Smith Ii

Scholarly Articles

This Monograph derives from a Lecture, under the same title, given in Sydney, Australia, honoring Michael D. Kirby, AC, CMG, Justice of The High Court of Australia. The first part of the Monograph analyses the significant contributions that Justice Kirby has made as a compassionate champion of human rights and acknowledges what is styled as the Kirby Ethic which, in turn, is seen as the foundation for the body of work of the Justice as well as the moving force in his private life as well. Building upon a theory of transcendent idealism which interprets God's purpose as safeguarding the …

Social Justice And Health Care Management: An Elusive Quest?, George P. Smith Ii

Scholarly Articles

Contemporary debate on health care resource management is tied to a central moral issue: namely, how to achieve an optimum level of reasonable or appropriate treatment based on the medical condition of each patient. Failing to tackle and resolve this issue in a confident and forthright manner assures the present approach to health care decision making to continue in a state of indecisiveness if, indeed, not lethargy.

Undergirding this moral issue is the foundational economic dilemma of controlling costs while limiting access to health care resources. Finding a just solution to an equitable distribution of finite health care resources is …

Law, Religion, And Medical Science: Conjunctive Or Disjunctive?, George P. Smith Ii

Scholarly Articles

No abstract provided.

The Stem Cell Debate, William J. Wagner, Ursula Weide

Scholarly Articles

No abstract provided.

Human Rights And Bioethics: Formulating A Universal Right To Health, Health Care, Or Health Protection?, George P. Smith Ii

Scholarly Articles

Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks - foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization. Although advanced - and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics - attainment …

“Just Say No!”: The Right To Refuse Psychotropic Medication In Long-Term Care Facilities, George P. Smith Ii

Scholarly Articles

This Article examines the provisions of The Omnibus Budget Reconciliation Act of 1987 (OBRA '87) surveying the case law as such that deals with the rights of patients in mental institutions to refuse psychotropic medication. The article focuses first on an analysis of the different substantive and procedural rights afforded to patients under state common law, state constitutions and the federal Constitution. It then proceeds to evaluate the impact of OBRA '87 on the rights of long-term care patients who refuse medication and choose to accept minimal administrative hearings instead of pursuing full judicial proceedings designed to protect those rights. …

Restructuring The Principle Of Medical Futility, George P. Smith Ii

Scholarly Articles

This essay surveys the need for a clear and objective definition of medical futility. It is urged that once agreement is obtained for structuring operational guidelines for determining futility, a three-tier decisional structure can be developed for testing whether a given treatment falls within the scope of these guidelines.

Under the first tier, the treating physician would be given the primary responsibility for the making the determination to withhold treatment on the grounds of futility. While the physician would be under a duty not to prescribe treatment deemed futile, he would be obliged to inform the patient and his family …

Futility And The Principle Of Medical Futility: Safeguarding Autonomy And The Prohibition Against Cruel And Unusual Punishment, George P. Smith Ii

Scholarly Articles

Administering futile medical treatment is tantamount to inflicting cruel and unusual punishment on a patient and an abridgement of his rights of self-determination. It is incumbent upon physicians to recognize that they should accept the imposition of an affirmative legal, professional, moral and ethical duty not to prescribe a modality of treatment that falls clearly within the scope of being considered futile, freakish, or tortious under the provisions of Eighth Amendment to the Constitution. When medical treatment is classified as "futile," it frees the physician from any duty to provide treatment. While most reasonable persons agree with this proposition, much …

Market And Non-Market Mechanisms For Procuring Human And Cadaveric Organs: When The Price Is Right, George P. Smith Ii

Scholarly Articles

In the United States, as well as throughout the world, current demands for organ transplants far exceed the actual supply. Nonconsensual human donations, taken from minors, incompetents and prisoners are regulated carefully by the courts. The Uniform Anatomical Gift Act and the National Organ Transplant Act serve also as statutory frameworks for organ retrievals and allocations and place various restrictions upon each. Altruistically motivated donations at death continue to be an inadequate mechanism for meeting the growing demands of the market. Included among the various approaches to resolving the critical shortage of human organs for transplantation are post mortem harvesting, …

The Legal Dilemma Of Partner Notification During The Hiv Epidemic, Raymond C. O'Brien

Scholarly Articles

No abstract provided.

Murder, She Wrote Or Was It Merely Selective Nontreatment?, George P. Smith Ii

Scholarly Articles

This article will both explore and thereby establish the medical, ethical, and legal validity of selective nontreatment of severely handicapped newborns. A construct for principled decision-making, tied to a basic recognition of the right of self-determination, as shaped by compassion and validated principles of triage and cost-benefit analysis, will be seen as the most effective means for the states-and not the federal government-to evaluate the intensely complex issues associated with allocating scarce medical resources to defective infants. Governmental intrusions into the familial decision- making forum in these circumstances must be kept to a minimum and allowed only in grave cases.

Death Be Not Proud: Medical, Ethical And Legal Dilemmas In Resource Allocation, George P. Smith Ii

Scholarly Articles

No abstract provided.

Australia’S Frozen ‘Orphan’ Embryos: A Medical, Legal And Ethical Dilemma, George P. Smith Ii

Scholarly Articles

The central issues raised here are whether the two frozen embryos have a legal right to 1) live and be implanted in a surrogate mother, and, when and if they are born, 2) assert inheritance rights in the Rios' estate. Equally important is the question of the extent to which research into the new reproductive technologies should be allowed or restricted.

The Plight Of The Genetically Handicapped Newborn: A Comparative Analysis, George P. Smith Ii

Scholarly Articles

Confusion and controversy surround efforts to re-evaluate and, thus, redefine the extent to which governmental intrusion should be allowed in the doctor-patient relationship vis-a-vis the treatment or non treatment of genetically handicapped, at risk infants. The purpose of this article is to present a succinct comparative analysis of the medical-legal posture in Britain and the United States and from this analysis to develop a construct to aid the physician and the family in making decisions concerning the administration or the withholding of treatment for genetically defective newborns.

Quality Of Life, Sanctity Of Creation: Palliative Or Apotheosis?, George P. Smith Ii

Scholarly Articles

This Article will suggest an approach to facilitate decision-making where the concepts of quality of life and sanctity of life appear to clash. It is hoped that a reconciliation of these two ideas will provide an alternative to the increasing federal intervention in the process of family decision-making vis-a-vis handicapped infants.

The construct will combine deontological standards with situational, or consequential, ethics. This unique synthesis will then be placed within a sphere of expanded family advisers-medical, social, spiritual, legal, etc.-who are called into being with the birth of a genetically defective newborn. The force of the construct arises from the …

Sexuality, Privacy And The New Biology, George P. Smith Ii, Roberto Iraola

Scholarly Articles

This Article investigates two alternative methods of human conception: Specifically, the artificial insemination of unmarried women for either their own personal purposes of pregnancy without the benefit of marriage or as surrogates for infertile women. Surrogation is evaluated, then, as an analytic complement to the sexual privacy of women who are expressing their sexual freedom through unconventional means to become pregnant.

The conclusion drawn is that an unmarried woman’s fundamental right to privacy or procreation does not encompass a right to either artificial insemination or surrogation. To allow unfettered access to these two methods of conception would - quite simply …

Handicapped Babies And The Law: The United States Position, George P. Smith Ii

Scholarly Articles

No abstract provided.

Intimations Of Immorality: Clones, Cyrons And The Law, George P. Smith Ii

Scholarly Articles

This article examines some legal and moral issues associated with two developing areas of biomedicine; cloning and cryonics. The author firstly considers the practical benefits to society of developing perfecting and utilizing the process of cloning. These include the ability to overcome inheritable genetic defects and the provision of organs for transplantation. Against this must be weighed some moral and ethical problems of genetic engineering. Professor Smith then discusses the process of deep-freezing a person and the development of cryonics as a social movement. The major legal problem stemming from cryonics is determining the time at which a cryonically suspended …

The Razor’S Edge Of Human Bonding: Artificial Fathers And Surrogate Mothers, George P. Smith Ii

Scholarly Articles

This article will examine the plight of the artificial father and surrogate mother by focusing on how the law views artificial insemination. From this focus, the author will explore alternative responses for dealing with problems involving surrogate mothers, donor insemination, and infertility and show their symbiotic, if not direct, relation to the problem of infertility.

Intrusions Of A Parvenu: Science, Religion, And The New Biology, George P. Smith Ii

Scholarly Articles

Both religion and the law must seriously consider artificial insemination so that dogma and laws are formed to incorporate the process. Science has brought the procedure to a society unequipped to deal with the religious and legal implications of birth through artificial insemination in any of its forms. Not all religions or jurisdictions can be expected to treat the process exactly alike, but there must be an effort on the part of each organization to react to the situation facing them so that their citizens will have some guidance.

Section II of this article illuminates the path science is on …

The Promise Of Abundant Life: Patenting A Magnificent Obsession, George P. Smith Ii

Scholarly Articles

The purpose of this essay will be to explore the parameters of the scientific imperative to explore truth. The scope of this inquiry is shaped in part by the United States patent laws and administrative interpretations and, more specifically, by the United States Supreme Court in its recent holding allowing the new forms of life created in a laboratory to be patented. The ultimate purpose of this piece, then, is to refute the arrogance of power theory expressed as being implicit in the investigations of the vast potential for the positive achievement of good through harnessing the "New Biology." Thus, …

Great Expectations Or Convoluted Realities: Artificial Insemination In Flux, George P. Smith Ii

Scholarly Articles

No abstract provided.

Uncertainties On The Spiral Staircase: Meta-Ethics And The New Biology, George P. Smith Ii

Scholarly Articles

No abstract provided.

Manipulating The Genetic Code: Jurisprudential Conundrums, George P. Smith Ii

Scholarly Articles

This article considers the scientific, legal, ethical, and social issues of the Brave New World of Biotechnology as they existed in 1976 and as they exist — interestingly — today. Central to these issues (e.g., in vitro fertilization, genetic planning) presented in historical context, is consideration of the extent to which freedom of scientific investigation should be allowed and even encouraged by the government. In order to shape normative standards of conduct from which ethical constructs can be developed and policy developed, scientific experimentation must be promoted and designed to safeguard the common good — this, by enhancing opportunities for …

Through A Test Tube Darkly: Artificial Insemination And The Law, George P. Smith Ii

Scholarly Articles

Although written forty-four years ago, this article provides a foundational analysis of the then-nascent beginnings of the legalization of artificial insemination from the judicial posture taken by the state of California to the legislative stance of Oklahoma. Analyzing the consequences of artificial insemination by a donor (A.I.D.) and by a woman’s husband (A.I.H.), the consequences of these procedures on family law — and especially illegitimacy — inheritance, and adultery, are studied and evaluated.

In order to provide some degree of stability and predictability to this obviously contentious area within Law, Science, and Medicine, this article urges measured experimentation in genetics …