Owning Persons: The Application of Property Theory to Embryos and Fetuses

Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos\u27 legal status is lacking. This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories. The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses

Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person\u27s competence will have implications for whether he or she is allowed to decide what type of treatment, if any, is received; whether treatment is discontinued, including life-sustaining treatment; and whether medical professionals implementing decisions are exposed to civil or criminal liability

All for One and One for All: Informed Consent and Public Health

The concept of informed consent is well established in the field of bioethics, but its application is unclear in the area of public health. The increasing prevalence of public health interventions creates a need to analyze the scope of government power as it relates to individual choice. This Article explores three different types of public health measures in which individual choice has been limited: (1) environmental interventions; (2) classic public health interventions to prevent contagious disease; and (3) public health information reporting or use. The reasons for limiting informed consent vary depending on the context, and the implications for the scope of an exception likewise vary. Careful consideration of the theoretical bases for exceptions indicates the importance of information disclosure in almost all situations, and may lead to novel solutions, such as a ‘fair use‘ model for health information. A singular “public health exception” concept is overly broad and superficial. Instead, there should be a fuller debate about the requirements of informed consent in the wide variety of public health settings

Symposium: Issues in Bioterrorism -Introduction

This issue of Health Matrix focuses on the legal issues involving bioterrorism

All for One and One for All: Informed Consent and Public Health

The concept of informed consent is well established in the field of bioethics, but its application is unclear in the area of public health. The increasing prevalence of public health interventions creates a need to analyze the scope of government power as it relates to individual choice. This Article explores three different types of public health measures in which individual choice has been limited: (1) environmental interventions; (2) classic public health interventions to prevent contagious disease; and (3) public health information reporting or use. The reasons for limiting informed consent vary depending on the context, and the implications for the scope of an exception likewise vary. Careful consideration of the theoretical bases for exceptions indicates the importance of information disclosure in almost all situations, and may lead to novel solutions, such as a ‘fair use‘ model for health information. A singular “public health exception” concept is overly broad and superficial. Instead, there should be a fuller debate about the requirements of informed consent in the wide variety of public health settings

Putting the Community Back into the ‘Community Benefit’ Standard

The responsibility of hospitals to provide charity care raises fundamental questions about the structure of the United States\u27 health care system. There has been little concrete effort to reassess the obligations of hospitals. This Article seeks to fill that gap by proposing a novel framework for analyzing hospitals\u27 community obligations. This new framework challenges traditional notions of individual charity care and provides a normative basis for encouraging a shift toward public health benefits

Ethics and E-Medicine

The computer revolution has had enormous effect on all aspects of the practice of medicine from scheduling and billing, to treatments, to research and beyond. This article focuses on the impact of new internet technologies on relationships between physicians and patients. These forms e-medicine may be utilized outside the confines of a pre-existing relationship, and thus have the potential to replace rather than merely augment traditional medical care. They change the setting and nature of the physician-patient relationship and thereby alter how medicine is practiced. Initial discussions of this issue implied that e-medicine was problematic because it failed to create a physician-patient relationship. Emphasizing the gold standard of the face-to-face interaction, commentators argued that electronic communications were inferior to traditional physician-patient encounters. But there was little attention paid to the questions of why face-to-face encounters are important, and why electronic encounters are inadequate. It was simply assumed that physical contact was the crucial element of a physician-patient encounter and its absence undermined the electronic encounter. But the analysis is not this simple. While the concept of laying on of hands is well-embedded in medical literature, it is certainly not practiced in all encounters. Moreover, advances in electronic technologies have resulted in face-to-face equivalent interactions via electronic media. Using interactive real-time video conferencing and virtual reality technology, for example, a patient and physician can have an interactive, hands-on equivalent encounter. In fact, it makes no sense, from an ethics perspective, to talk as if an electronic encounter does not create a physician-patient relationship; it does. The issue is the extent of the relationship and thus the extent of the physician\u27s obligations. Instead of focusing on the presence or absence of one factor, such as a physical exam, we would do better to ask what elements of the traditional encounter are necessary to provide a basis for ethical care. Each encounter between a physician and patient is different, and different elements may be required before engaging in particular interventions. The crucial issue I explore is the extent to which these new tools enable, or prevent physicians from meeting ethical standards of care. What are ethical standards of care? Good medical care, as so often has been pointed out, is not merely the provision of competent care, although technical competence is one part. The ideal physician is not merely a technician, but a healer. Drawing from work by Emanuel and Dubler, I examine six elements of the ideal physician-patient relationship - what they call the six C\u27s: choice, competence, communication, compassion, continuity, and conflict of interest. My goal is to provide a framework for thinking about the impact of new technology on the physician-patient relationship, rather than definitive statements on the ethical acceptability of particular media. After evaluating each of these elements in detail, I conclude that electronic media are neither ethical nor unethical in and of themselves. Physicians should consider their use as technical tools, but be aware of potential effects on relationships with patients. Importantly, I stress that physicians should be trained in the appropriate use of electronic communication media, and that efforts should be made to promote access to useful technologies, particularly for underserved populations