Bioethics and Medical Ethics Commons^™

Let She Who Has The Womb Speak: Regulating The Use Of Human Oocyte Cryopreservation To The Detriment Of Older Women, Browne C. Lewis

Law Faculty Articles and Essays

This article is divided into three parts. Part I examines the arguments in favor of banning human oocyte cryopreservation. Part II explores the reasons some opponents of human oocyte cryopreservation might give to support restrictions on the use of frozen oocytes. Part III analyzes the possible ethical and legal challenges that may arise in the event that the government seeks to ban the use of frozen oocytes or restrict the use of frozen oocytes based solely on the age of the potential mother.

A Deliberate Departure: Making Physician-Assisted Suicide Comfortable For Vulnerable Patients, Browne C. Lewis

Law Faculty Articles and Essays

This Article is divided into four parts. Part I discusses the history and evolution of the "right to die movement" in the United States. The current legal landscape in the United States is examined in Part II. In Part III, I analyze some of the relevant ethical concerns caused by the availability of physician-assisted suicide. My analysis primarily focuses on the Oregon statutes because it is the oldest physician-assisted suicide law in the United States and has served as a model for laws in the United States and abroad. For example, Lord Falconer's Bill, which was defeated by the British …

The Rise Of The Reproductive Brothel In The Global Economy: Some Thoughts On Reproductive Tourism, Autonomy, And Justice, April L. Cherry

Law Faculty Articles and Essays

This article explores some of the ethical issues raised by the rise of a global reproductive tourism model that includes “the reproductive brothel,” a place where women are gathered together in confined areas and their reproductive capacities sold to men as commodities. After exploring the phenomenon of reproductive tourism as it has developed in India, and the ways in which economic globalization has shaped the practice, the article then considers two ethical responses to the development of the practice of global commercial surrogacy; the first of which focuses on the value of autonomy (both as choice and as dignity), and …

From Yuck To Wow And Back Again, Dena S. Davis

Law Faculty Articles and Essays

This review essay discusses three recent books on the problem of "directed evolution," or genetic engineering, written from differing philosophical perspectives. The books are Babies by Design, by Ronald M. Green, Enhancing Evolution, by John Harris, and The Case against Perfection, by Michael J. Sandel.

Dead Men Reproducing: Responding To The Existence Of Afterdeath Children, Browne C. Lewis

Law Faculty Articles and Essays

The statutory mandates are a step in the right direction, but there is still work that needs to be done. The statutes should be amended to close certain loop holes and to ensure that the physician-facilitated suicide option is available to all of the patients who need it. Persons suffering from physical conditions that will lead to death within six months should not be the only persons permitted to exit gracefully. As long as the safeguards included in the statutes are followed, there is no good reason to prohibit persons suffering from irreversible and incurable physical diseases that lead to …

The Puzzle Of Ivf, Dena S. Davis

Law Faculty Articles and Essays

This essay seeks to address a puzzling element of the current political and legal struggles over abortion in the United States: if, as pro-life activists insist, embryos are morally equivalent to born, living persons, then why do these activists not oppose in vitro fertilization (IVF) as aggressively as they oppose abortion? IVF accounts for a significant number of destroyed embryos. Constitutionally, IVF appears to be a much more vulnerable target than abortion. And yet, legislative and political attempts to attack and restrict IVF are few, while attempts to erode women's capability to terminate pregnancies are a constant feature of our …

Genetics: The Not-So-New Thing, Dena S. Davis

Law Faculty Articles and Essays

Practical knowledge of heredity predates history. Indigenous peoples laid the foundations of modern agriculture by developing plants such as corn. However, the language and metaphors of the Human Genome Project treat modern genetics as if it had no historical antecedents and fail to acknowledge these early contributions to the science of heredity. The results of this blindness are twofold: it exacerbates reluctance of native peoples to take part in genetic research and to garner the benefits of genetic medicine, and it encourages "biopiracy," as modern scientists "discover" and patent native plants.

Stem Cells, Cloning, And Abortion: Making Careful Distinctions, Dena S. Davis

Law Faculty Articles and Essays

The current controversy over federal funding for research involving stem cells derived from very early embryos is situated between two other equally difficult issues: abortion and cloning. As Laurie Zoloth (2002) says, talk about stem cells is "directly proximate" to the abortion debate. Nonetheless, a settled position in favor of abortion rights does not necessarily lead to support for research that involves the death of embryos. Nor should opposition to reproductive cloning necessarily entail opposition to therapeutic cloning. There are important ways in which our attitudes toward research with embryonic stem cells ought to be entwined with our thinking about …

Symposium Issue: "Who's Afraid Of Commodification?", Dena S. Davis

Law Faculty Articles and Essays

Unfortunately, a great deal of the talk about "commodification" has been clumsy and sloppy. The term has been used as a magic bullet, as if saying "But that's commodification!" is the same as having made an argument. In fact, commodification of human persons, human bodies, human labor, human relationships, is a complex matter.

Cloning: A Jewish Law Perspective With A Comparative Study Of Other Abrahamic Traditions, Stephen J. Werber

Law Faculty Articles and Essays

This Article does not provide answers to the religious, ethical, and moral issues posed by advanced reproductive techniques in human cloning. Rather, the preceding analysis and discussion seeks to make a contribution, however modest, to the continuation of the societal discussion that will ultimately yield the answers. This Article presents the common concerns of the religious traditions of Judaism, Islam, and Christianity with their mutual emphasis on preserving the dignity of all beings. This and other common values must form the foundation upon which all questions related to the cloning debate must be predicated.

Religious Attitudes Toward Cloning: A Tale Of Two Creatures, Dena S. Davis

Law Faculty Articles and Essays

This Essay offers one analytic structure with which to approach the study of religious responses to cloning and suggests that, whereas the negative reactions are tied to a Frankenstein approach--that is, one which uses all the horror of that myth to express our fears about humans getting into the creation business--the more positive reactions express what I will call the Golem approach, based on a lesser-known legend.

Tell Me A Story: Using Short Fiction In Teaching Law And Bioethics, Dena S. Davis

Law Faculty Articles and Essays

For some years now, I have been experimenting with the use of short stories. Despite rich resources for stories, there remains a void best filled by fiction. When discussing fiction, we can probe, criticize, and express ourselves freely without the constraints we feel when discussing real people. Good fiction lays bare the innermost thoughts and experiences of its characters, perhaps even their dreams and nightmares, in a way that would be intrusive, uncomfortable, or impossible, even in autobiography. When the entire class reads a short story, it provides a pool of shared experience, a fixed point for discussion. Just as …

Cochlear Implants And The Claims Of Culture: A Response To Lane And Grodin, Dena S. Davis

Law Faculty Articles and Essays

Because I reject the notion that physical characteristics constitute cultural membership, I argue that, even if the claim were persuasive that deafness is a culture rather than a disability, there is no reason to fault hearing parents who choose cochlear implants for their deaf children.

Genetic Dilemmas And The Child's Right To An Open Future, Dena S. Davis

Law Faculty Articles and Essays

In this paper, I examine three difficult issues raised by the Human Genome Project, and lay out an approach that takes seriously the interests of the child, present or future, while preserving the traditional commitment of professional geneticists to patient autonomy. The approach I take is based on Joel Feinberg's concept of "the child's right to an open future." In Part II, I describe the Human Genome Project, as well as the advances in assisted reproduction which give people ways to make use of the information engendered by the HGP. In Part III, I discuss the ethics of medical genetics, …

Ancient Answers To Modern Questions: Death, Dying And Organ Transplants - A Jewish Law Perspective, Stephen J. Werber

Law Faculty Articles and Essays

Core values of the Jewish heritage are life and family, not death. An interpretation of Halachah which permits a broad definition of passive euthanasia without lapsing into acceptance of active euthanasia or its more evil cousin, assisted suicide, is consistent with these values. Also consistent with these values and the Jewish tradition is a modern definition of death which recognizes advances in medical technology that were beyond the knowledge or imagination of those who created the vast body of Rabbinic law. This approach will not only ease the suffering of families, it will allow organ transplants to save the lives …

One Way To Be Born? Legislative Inaction And The Posthumous Child, Karin M. Mika

Law Faculty Articles and Essays

This article argues that the posthumous child and the rights and responsibilities relating to such a child are directly related to the fundamental right to procreate. It argues that legislation must necessarily incorporate that right in sorting out issues related to the posthumous child and deviate from the standard principles of contract laws which have been applied in the past. This article examines the history, case law, federal decisions, and current legislation pertaining to artificial insemination. It argues that such legislation is inadequate and that legislatures must act promptly to address the realities of the posthumous child.

A Feminist Understanding Of Sex-Selective Abortion: Solely A Matter Of Choice, April L. Cherry

Law Faculty Articles and Essays

This essay consists of five sections. The first section describes the problem of sex-selective abortion, including an analysis of sociological data regarding adult preference for male children and its current effects. Section Two discusses various philosophical paradigms and analyses of sex-selective abortion with the goal of developing a coherent philosophical base from which to argue for a policy regarding sex-selective abortion which furthers the goals of gender equality. Section Three addresses the constitutionality of sex-selective abortion prohibitions in light of the Supreme Court's pronouncement in Planned Parenthood of Southeastern Pennsylvania v. Casey. Section Four outlines the liberal feminist response to …

Embryos Created For Research Purposes, Dena S. Davis

Law Faculty Articles and Essays

The creation of embryos for research use has drawn a great deal of criticism. It is difficult to defend an ethical distinction between what one can do to "spare" embryos and what one can do to "research" embryos. The strongest ground on which to argue against the creation of embryos for research is a symbolic one, having to do with respect for human life. Ronald Dworkin's work in Life's Dominion on the symbolic meaning of the abortion debate throws a helpful light on this dispute. By understanding the basic question to be, Does the creation of research embryos weaken or …

The Biological Alteration Cases, Sheldon Gelman

Law Faculty Articles and Essays

State interventions such as drugging dangerous prisoners to “alter the chemical balance in the brain,” sterilizing women involuntarily, or, more modestly, compelling vaccination in order to modify someone's immune system, employ a remarkable and problematic technique. The government biologically alters an individual to suit official policy, tailoring the person's very physical constitution to conform with some public objective. Even when the objective is worthy, such as preventing disease, the technique remains troubling. For in the process of biological alteration, government transforms individuals into instruments of state policy. Focusing on the handful of Supreme Court decisions involving the technique, this Article …

Method In Jewish Bioethics: An Overview, Dena S. Davis

Law Faculty Articles and Essays

This essay introduces the reader to the processes by which Jewish ethical-legal reasoning brings old insights to bear on new problems generated by advances in science and medicine. There are at least four reasons why Jewish legal thinking in this area is important to the wider community of Western legal scholars. First, because the law often strives to consider different religious beliefs, it is important to understand these beliefs, the history of these beliefs, and how they function within their religious community.

Second, Jewish legal thinking is important because representatives of religious traditions frequently serve on policy and law-making bodies. …

Slim Just Left Town: Decision-Making On An Intensive Care Unit, Dena S. Davis

Law Faculty Articles and Essays

This essay will analyze the process of making health care decisions when patients' chances are slim. I look at recent legal tools that purport to enhance patients' control over their own care, and conclude that they are rarely efficacious. Because all medical decisions are based on prognosis, and because prognosis is ineluctably subjective, the doctor retains almost total control of the decisionmaking process.