Sociocultural and legal implications of creating and sustaining life through biomedical technology

Journal of Legal Medicine

Volumn 17, Issue 4, 1996, Pages 469-525

  Garcia, Sandra Anderson ^a  

^a UNIVERSITY OF SOUTH FLORIDA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EMBRYO TRANSFER; FERTILIZATION IN VITRO; LEGAL ASPECT; MEDICAL ETHICS; NIDATION; REVIEW;

EID: 0030448682     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947649609511019     Document Type: Article

References (252)

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35. 1995. Dead Man's Sperm Extracted. Tampa Trib., Jan. 20:8
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45. 1995. Scandal in the Business of Fertility. Nightline, ABC News, June 6
46. 1995. "Egg Heist” Victim Speaks Out. Orange County Jewish Heritage, July 21:1 col. 3
47. 1996. The Test-Tube Custody Fight. Time, Mar. 18:80
48. Robertson. 1995. The Case of Switched Embryos. Hastings Center Rep., 25 Nov./ Dec.:13
49. 1992. “Sperm Doctor” Convicted. St. Petersburg Times, Mar. 5:1A col. 5
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51. 1994. also The “Intent” of Reproduction:Reproductive Technologies and the Parent-Child Bond. Conn. L. Rev., 26:1261
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53. Wurmbrand. 1986. Frozen Embryos:Moral, Social, and Legal Implications. So. Cal. L. Rev., 59:10791082–88.
54. Ozar. 1985. The Case Against Thawing Unused Frozen Embryos. Hastings Center Rep., 15 Aug.:7
55. Capron. 1992. Parenthood and Frozen Embryos:More than Property and Privacy. Hastings Center Rep., 22 July/Aug.:32
56. Annas. 1993. “A French Homunculus in a Tennessee Court”. In Standard of Care Edited by:Annas, G., 7173
57. Jordan III. 1988. Incubating for the State:The Precarious Autonomy of Persistently Vegetative and Brain-Dead Pregnant Women. Ga. L. Rev., 22:1103
58. 1994. Baby K:A Legal and an Ethical Viewpoint. ASLME Briefings, 10 Summer
59. Garcia. 1990. Reproductive Technology for Procreation, Experimentation and Profit. J. Legal Med., 11:1
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61. 1994. U.S. Clinic Testing French Abortion Pill under Cloak of Secrecy. Tampa Trib., Oct. 28:8
62. 1995. Charges Against and Convictions of Violent Abortion Opponents Continue. Reproductive Freedom News, IV Sept.:5
63. 1995. Despite Court, Political Wins, There Are Fewer Abortion Providers. St. Petersburg Times, Jan. 7:5A col. 2
64. 1995. Salvi Pleads Not Guilty to Charges. Boston Globe, Jan. 7:1
65. ACLU. June 1995. Reproductive Rights Update, The ACLU's Role in Stopping Clinic Violence June
66. 1995. Abortionist Wins Harassment Suit. Chicago Trib., Oct. 26:3
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68. Bambrick. 1987. Developing Maternal Liability Standards for Prenatal Injury. St. John's L. Rev., 61:592
69. Steinbock. 1986. The Logical Case for “Wrongful Life,”. Hastings Center Rep., 16 Apr.:15
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72. 1990. The Tiniest Patients. Newsweek, June 11:56
73. 1993. Cures from the Womb. Newsweek, Feb. 22:49
74. 1991. The Gift of Life. Time, June 17:55
75. Morrow. 1991. Ethics:Sparing Parts. Time, June 17:54–58.
76. Griner. 1994. Live Organ Donations Between Siblings and the Best Interest Standard:Time for Stricter Judicial Intervention. Ga. St. U.L. Rev., 10:589
77. Dwyer and Vig. 1995. Rethinking Transplantation Between Siblings. Hastings Center Rep., 25 Sept./Oct.:7
78. Alpern, K., ed. 1992. “Case Studies, The Case of Baby M:Parenting Through Contract When Everyone Wants the Child”. In The Ethics of Reproductive Technology
79. 1993. State High Court Denies Orange County Surrogate Custody. L.A. Times, May 21:1 col. 2
80. Garcia. 1989. “The Baby M Case:A Class Struggle Over Undefined Rights, Unenforceable Responsibilities, and Inadequate Remedies”. In New Approaches to Human Reproduction Edited by:Whiteford, L., and Poland, M.
81. Property or Persons? The Status of Embryos in In Vitro Fertilization”. In Ethics 338 supra note 55
82. 1995. Baby Conceived, Born 5 Years Later. St. Petersburg Times, Mar. 3:5A col. 1
83. 1993. Pregnant Women Find Employer Bias. St. Petersburg Times, Jan. 3:6A col. 1 (companies that fire pregnant women are being sued for pregnancy discrimination and for violating pregnant women's right to work)
84. Ephross. 1992. In Vitro Fertilization:Perspectives on Current Issues. Jurimetrics J., 32 Spring:447
85. Glendon, M., 1991. Rights Talk:The Impoverishment of Political Discourse xi
86. 1992. Woman's Decision to Die for Fetus Sparks Uproar in Italy. St. Petersburg Times, Jan. 31:16A col. 4
87. 1996. The Sperm that Never Dies. Time, June 10:69
88. 1992. Irish Girl Had Abortion in England. St. Petersburg Times, Mar. 6:1A col. 3 (Ireland's Supreme Court allowed a 14-year-old girl, who claimed to have been raped, to go to England for an abortion because she was suicidal)
89. 1995. Sperm Market Diminishes Dad's Role. St. Petersburg Times, May 10:15A col. 1 (claiming that the unchecked sale of sperm to single women downplays the role of the male in reproduction, encourages the creation of fatherless children, is not far from viewing fathers as troublesome, marginal, and essentially irrelevant inseminators, and signals that new reproductive technologies suggest marriage and the family are obsolete)
90. Nsiah-Jefferson. 1989. “Reproductive Laws, Women of Color, and Low-Income Women”. In Reproductive Laws for the 1990s Edited by:Taub, N., and Cohen, S.
91. 1995. ABC Evening News, Nov. 3
92. 1992. African-American Women and Abortion:A Neglected History. J. Health Care for Poor & Underserved, 3:274
93. Cole-Turner. 1992. Religion and the Human Genome. J. Religion & Health, 31:161166
94. Arras, J., and Hunt, R., eds. 1983. “Abortion Funding for the Poor”. In Ethical Issues in Modern Medicine 185
95. 1993. Clinton Signs Sweeping Changes for Abortion Rights. St. Petersburg Times, Jan. 23:2A col. 1 (reports that hours after 75,000 anti-abortion demonstrators gathered on the 20th anniversary of the Supreme Court ruling legalizing abortion, among other things, newly elected President Bill Clinton allowed abortions at United States military hospitals overseas if they are paid for privately)
96. 1995. Healthy Babies Wait on Cutting Edge on Genetics. Tampa Trib., June 26:1 col. 2 (using preimplantation genetic diagnosis, a Florida couple that carried a mutant gene on the X chromosome that causes severe brain swelling and is usually fatal when passed on to boys was assured by their physicians at University of Florida's Shands Hospital that their offspring would be girls)
97. 1995. Demography:China's Looming Bachelor Boom. Wash. Post, Feb. 13:A2 col. 2 (according to a new study by Stanford University researchers, by 2010, there will be about 1 million excess men per year on the Chinese marriage market, and that sex imbalance caused by high early female mortality is likely to continue through 2050)
98. 1996. Bias Continues to Kill Baby Girls in Asia. Tampa Trib., May 27:2 Bay Life, col. 2 (research in India, China, and Taiwan suggests that biases against girls are not disappearing, that more than 1 million girls were lost due to selective abortions in India between 1981 and 1991, and that evidence of sex selection is widespread in Taiwan)
99. 1995. Too Young to Be Movie Stars and With Ultrasound, the Fewer the Better. Wash. Post, Feb. 13:D4 col. 1 (documenting other unintended consequences of the widespread use of ultrasound, such as keepsake and entertainment sonogram fetal videos, which is contrary to physicians’ recommendations that ultrasound should not be done routinely during fetal development)
100. Karjala. 1992. A Legal Research Agenda for the Human Genome Initiative. Jurimetrics, Winter:121161 Genetic research on criminality focused on violent crime after the identification of the XYY male who differed from the normal male whose sex chromosomes are XY. It is generally agreed among geneticists that not within the next 15–20 years, would there be reliable data on the relationship between genetic makeup and behavioral characteristics. The most that anyone at a 1992 national conference was willing to predict was that a group of genes might be found in the next 5–10 years that would slightly raise one's susceptibility to commit crime. Conferees agreed that confusing causality for mere correlation, and an underestimation of the effects of the environment, pose problems for the interpretation of any future data on genes and behavior. See
101. Shapiro, M., and Speece, K., eds. 1981. Bioethics and the Law 348
102. Robin. “Genetic Screening for the XYY Chromosome Pattern”. In Ethical Issues 432 supra note 74
103. Beckwith and Knig. “The XYY Syndrome:A Dangerous Myth”. In Ethical Issues 438 supra note 74
104. Gibbs. 1995. Seeking the Criminal Element. Scientific American, 272 Mar.:100
105. Haller, M., 1963. Eugenics:Hereditarian Attitudes in American Thought
106. Marshall. 1995. Balancing the Three Strikes Equation. Cal. Lawyer, 15 Feb.:56
107. 1995. Three Strikes. USA Today, Oct. 12:3A col. 1 (Pennsylvania Gov. Tom Ridge signed into law what he calls a “smart” version of the “three strikes and you're out” measures adopted by 18 other states. Most set a mandatory life sentence after a third offense. Pennsylvania will require a minimum 25-year term and leave life sentences to the discretion of judges.)
108. 1994. Federal Panel Endorses Human Embryo Research. St. Petersburg Times, Sept. 28:26A See Cures from the Womb, supra note 52;
109. McLachlan. 1993. Warnock and Research on Human Embryos:A Case for a Re-Appraisal of the Human Fertilization and Embryology Act (1990). Int'l J. Sociology & Soc. Pol., 13:110 (argues that using personhood of an embryo to decide the appropriateness of embryonic research is misplaced and that an embryo's status as a human being may not, by itself, make embryonic research unjustified)
110. 1993. In the Path of Daedalus:Middle-Class Australians’ Attitudes to Embryo Research. Brit. J. Soc., 44 June:271 (in the Australian debate over the permissibility of embryo experimentation, four lobbies divided themselves into supporting and opposing parties:the scientific and infertile women's lobbies support it while the pro-life feminists lobbies oppose it)
111. National Institutes of Health. Sept. 1994. Report of the Human Embryo Research Panel Sept., ix
112. Robertson. 1995. Symbolic Issues in Embryo Research. Hastings Center Rep., 25 Jan./Feb.:37 The principles and guidelines for preimplantation embryo research include requirements that the research must:be conducted by scientifically qualified individuals in an appropriate research setting; consist of a valid research design and promise significant scientific or clinical benefit; be incompatible with available research on animal or unfertilized gametes; involve the minimum number of embryos consistent with scientific criteria for validity; include the informed consent of donors of gametes or embryos with regard to the nature and purpose of the specific research being undertaken; not involve any purchase or sale of gametes or embryos; have research protocols and consent forms reviewed and approved by an appropriate institutional review board; have equitable selection of donors of gametes and embryos, and efforts must be made to ensure that benefits and risks are fairly distributed among subgroups of the population; be limited to the shortest period consistent with the goals of each research proposal; and not be permitted beyond the time of the usual appearance of the primitive streak in vivo (14 days). Id. at x & xi. See also
113. Fletcher and Schulman. 1985. Fetal Research:The State of the Question. Hastings Center Rep., 15 Apr.:6
114. 1994. Pig Organs a Focus of Baxter Deal. Chicago Trib., Aug. 31:IC (Baxter Healthcare Corp. reported that it has formed an alliance with DNX Corp., a biotechnology company that has used pig livers to filter the blood of patients with terminal liver disease and has bio-engineered pigs to produce human hemoglobin as part of their blood)
115. 1994. Doctors to Use Pig Liver on Human. The Ottawa Citizen, July 27:A12 (describes researchers’ plan to use a pig's liver, altered so that it carries human proteins, to filter the blood of a patient suffering from acute liver failure)
116. 1994. Pig Transplants Offer Hope in Diabetes:Transplantation of Pancreatic Islet Cells from Pigs. Science, 266 Nov. 25:1323
117. 1994. Xenotransplants Set to Resume. Science, 266 Nov. 18:1148 (the field of xenotransplantation is described as “explosively active")
118. 1995. Search for a Gay Gene. Time, June 12:60 (scientists transplanted into fruit flies a single gene related to one that exists in humans to display homosexual behavior although there is no evidence yet that the human gene has an effect on sexual preference)
119. Robertson. 1994. The Question of Human Cloning. Hastings Center Rep., 24 Mar./Apr.:6
120. 1993. Clone Hype. Newsweek, Nov. 8:60
121. 1993. Cloning of Human Embryos Stirs Tempest in a Test Tube:Explosive Biomedical Advances May Be Just Beyond Horizon. Ariz. Rep., Nov. 7:A10
122. Begley. 1995. The Baby Myth. Newsweek, Sept. 4:38 (discusses infertile couples’ efforts to conceive through reproductive technology and compares the effectiveness of five of the most common techniques:in vitro fertilization (IVF) gamete intrafallopian transfer (GIFT) intra-uterine insemination (IUI) zygote intrafallopian transfer (ZIFT) and intracytoplasmic sperm injection (ICSI))
123. Hill. 1991. What Does It Mean to Be a “Parent"? The Claims of Biology as the Basis for Parental Rights. N.Y.U.L. Rev., 66:273 (the traditional legal presumption granting parental rights to a child's biological mother seems at least questionable when the biological mother differs from the gestational and intended mother)
124. Annas. 1992. Using Genes to Define Motherhood—The California Solution. New Eng. J. Med., 326:417
125. 1994. Ghost Mothers:Human Egg Donation and the Legacy of the Past. Alb. L. Rev., 57:733 (discusses parent-child relationships that are formed when gametes are donated by individuals who do not intend to rear the resulting child and comments on the profound meaning of genetic ties to our ancestors and descendants)
126. Nobel, E., 1987. Having Your Baby by Donor Insemination 90
127. 1995. Turkey Baster Baby is Born. St. Petersburg Times, May 11:3A col. 2 (reporting on the birth of a baby born after having been conceived as a result of its aunt using a turkey baster to receive the sperm of her sister's husband)
128. 1990. Mixup Alleged at Sperm Bank. Chicago Trib., Mar. 10:3 (a woman sued a sperm bank alleging that she was impregnated with sperm other than that of her dying husband, but several experts said that record keeping is so detailed that it is nearly impossible for such a mistake to occur)
129. Trounson and Wood. 1991. Extra Corporeal Fertilization and Embryo Transfer. Clinics in Obstet. & Gyn., Dec.:1 An oocyte is an egg, or ovum, that is removed directly from the ovary. It is mature oocytes that are transferred from ovarian follicles either to the uterine cavity of an infertile recipient, where they can be inseminated, or matured in vitro and used in embryo transfer procedures.
130. 1994. Abortion Now Part of Test-Tube Baby Debate. St. Petersburg Times, Jan. 3:5A col. 1 (reporting that the technique of egg retrieval from aborted human fetuses pioneered by a British physician at Edinburgh Medical School may be able to produce a human baby within three years if the procedure is approved by the British Medical Association's ethics committee)
131. 1994. Controversy Erupts Over “Designer Babies,”. St. Petersburg Times, Jan. 1:4A col. 1
132. 1994. "Designer Babies” Spark Criticism. Wash. Post, Jan. 1:A15
133. Krimsky and Hubbard. 1995. The Business of Research. Hastings Center Rep., 25 Jan./Feb.:41 Central to the debate over the regulation of the infertility industry is whether internal hospital and clinic boards and physician ethical standards can provide effective regulation or whether more restrictive regulation is necessary. See, e.g.
134. Andrews. 1985. When Baby's Mother Is also Grandma and Sister. Hastings Center Rep., 15 Oct.:29 An increasing number of women are gestating fetuses for their children that are created with the germinal material of those children, resulting in the birth mother also being the newborn's grandmother. Sisters who act as surrogate mothers are both the birth mother and aunt of the newborn. See
135. Strauss. 1989. Triplets to a Surrogate Grandmother in South Africa:Legal Issues. Int'l Legal Pract., 14:70
136. Mullen, A., 1990. Missed Conceptions 244–94. (examination of IVF including its history, how to select an IVF program, success rates, procedures, stress involved, and controversy)
137. Ubell. 1995. If You're Trying to Have a Child. Parade, Oct. 8 (describing several reproductive technologies along with their costs; today, the price of IVF and ICSI hovers between $10,000 and $20,000 and may be covered in whole or in part by insurance)
138. 1994. Women Have Right to Bear Children at Any Age, Doctor Says. Tampa Trib., Jan. 1:2 -Nation/World, col. 1;
139. 1993. Italian Doctor Makes Enemies with Late-Motherhood Techniques. Atlanta J., Dec. 30:4A (Dr. John Marks, former chairman of the British Medical Association's Ethics Committee, said that the case of the 59-year-old woman giving birth after in vitro fertilization “bordered on the Frankenstein syndrome")
140. Leo. 1994. Modern Miracles or Recipe for Disaster?. San Diego Union-Trib., Jan. 3:B-7
141. Peritore. 1988. Select Bibliography on Surrogacy. Fam. L.Q., 22:136
142. Lieber. Selling the Womb:Can the Feminist Critique of Surrogacy Be Answered?. Ind. L.J., 68205 (analysis and feminist perspectives of surrogacy including the harms done to women and to society)
143. Raymond, J., 1993. Women as Wombs,:68–69. (discusses the Anna Johnson case, where a black surrogate mother did not contribute her egg; speculating that the white parents selected her precisely because she was black, ensuring that they would win in a dispute over custody of the child, which was the case)
144. Macphee and Forest. 1990. Surrogacy:Programme Comparisons and Policy Implications. Int'l J. Law & Family, 4 Dec.:308 And he went unto Hagar, and she conceived:and when she saw that she had conceived, her mistress was despised in her eyes. And Sarai said unto Abram, My wrong be upon thee:I have given my maid into thy bosom; and when she saw that she had conceived, I was despised in her eyes:the Lord judge between me and thee. But Abram said unto Sarai, Behold thy maid is in thy hand; do to her as it pleaseth thee. And when Sarai dealt hardly with her, she fled from her face. Holy Bible, supra note 8, at ch. 16, verses 4–6. See also
145. Baker. 1996. A Case for Permitting Altruistic Surrogacy. Hypatia, 11(2):34
146. Raymond. 1990. Reproductive Gifts and Gift Giving:The Altruistic Woman. Hastings Center Rep., 20 Nov./Dec.:7 (assesses altruistic surrogacy in the context of women's political inequality) J. Raymond, supra note 118, at 57 (arguing that the validity of altruistic surrogacy on the level of public policy leaves intact the image and reality of women as reproductive conduits through whom someone passes, and that whether money is involved or not, surrogate mothers are still instruments of exchange)
147. Annas. “The Short, Happy Life of Commercial Surrogacy”. In Standard of Care 61 supra note 36
148. 1995. No Laws Slopped Man from Hiring Surrogate. Tampa Trib., Jan. 22:8 -Nation/World, col. 1;
149. 1995. Pa. Man Pleads Guilty to Killing Surrogate Baby. St. Petersburg Times, Aug. 8:3A col. 4
150. 1995. 2 Marines Refuse to Give DNA Sample. Tampa Trib., Apr. 13:10 -Nation/World, col. 3 (citing spiritual and religious reasons, two marines refused to give blood for a “genetic dogtag” program aimed at helping the military identify soldier's remains). Primarily because of fears of unknown racially based consequences that might follow, several African American professionals protested a planned conference that was designed to discuss the possibility of a gene that causes criminal behavior. See also
151. Capron. 1990. Which Ills to Bear?:Reevaluating the “Threat” of Modern Genetics. Emory L.J., 39:665
152. Harding. 1991. Beyond Abortion:Human Genetics and the New Eugenics. Pepperdine L. Rev., 18:471
153. Andrews, L., 1987. Medical Genetics:A Legal Frontier 12
154. Juengst. 1994. Human Genome Research and the Public Interest:Progress Notes from an American Science Policy Experiment. Am. J. Hum. Genet., 54:121 For a review of legal and ethical issues raised by the research and practice in human genetics generally, and the HGP in particular, see
155. Elias II. 1990. A Clinical Approach to Legal and Ethical Problems in Human Genetics. Emory L.J., 39:811
156. Annas. 1990. Mapping the Human Genome and the Meaning of Monster Mythology. Emory L.J., 39:629
157. Makowski. 1996. The Human Genome Project and the Clinician. J. Fla. Med. A., 83:307
158. Nolan. 1992. First Fruits:Genetic Screening. Hastings Center Rep., 22 July/Aug.:S2
159. Clayton. 1992. Issues in State Newborn Screening Programs. Pediatrics, 90:641
160. O'Hara. 1993. The Use of Genetic Testing in the Health Insurance Industry:The Creation of a “Biologic Underclass,”. Southwestern U.L. Rev., 22:1211
161. Oster, Allen, Crandall, Moseley, Dewar, Ney and McCray. 1993. Insurance and Genetic Testing:Where Are We Now?. J. Hum. Genet., 52:565
162. Greely. 1992. “Health Insurance, Employment Discrimination and the Genetic Revolution”. In The Code of Codes Edited by:Kevles, D., and Hood, L., 412–28.
163. Draper. 1992. Genetic Secrets:Social Issues of Medical Screening in a Genetic Age. Hastings Center Rep., 22 July/Aug.:S15
164. Draper. 1992. “Genetic Testing in the Workplace:Competing Paradigms of Technological Advance”. In Controversy:Politics of Technical Decisions Edited by:Nelkin, D., 147–76. (genetic testing in the workplace is used by employers to screen out people identified as high risk for genes that are susceptible to damage from working conditions in ways that not only depend simply on biology, but on race, ethnicity, and gender)
165. Morris and Breihaupt. 1964. Compulsory Sterilization of Criminals—Perversion in the Law; Perversion of the Law. Syr. L. Rev., 15:738 Several states have or have had statutes that permit either eugenic or punitive sterilization of confirmed criminals designed to render the men incapable of reproduction. Although such sterilization is surgical, the possibility of eugenic sterilization of children of criminals through prenatal genetic manipulation might become an attractive alternative if a criminality genetic marker is discovered. See, e.g.
166. Farber. 1993. “Discrimination Issues and Genetic Screening”. In Prescribing Our Future:Ethical Challenges in Genetic Counselling Edited by:Bartels, D., LeRoy, B., and Caplan, A., 65
167. Agich. 1988. Genetic Justice. U.W. Ontario L. Rev., 24:39
168. Vatican Doctrinal Statement. 1987. Instruction on Respect for Human Life in Its Origins and on the Dignity of Procreation:Replies to Certain Questions of the Day
169. Kassam, Fernhoff, Brantley, Carroll, Zacharias, Klein, Priest and Elias. 1980. Acceptance of Amniocentesis by Low-Income Patients in an Urban Hospital. Am. J. Obstetrics & Gynecology, 138:11–15.
170. Hubbard and Henifin. 1984. “Genetic Screening of Prospective Parents and of Workers”. In Biomedical Ethics Reviews Edited by:Humber and Almeder. 92100 Employers have been given access to information concerning individuals who have the sickle cell trait and subsequently used it to justify refusals to hire, promote, or retain the employees. See
171. Brody, E., 1993. Biomédical Technology and Human Rights 17 For instance, the physical availability of contraceptive or other health services to uninformed, traditional peoples is not sufficient to ensure their use. More complex technologies that require specially trained physicians to administer them are completely out of reach of most of the world's population and available only to the few with the means to pay for, or the power to demand, them. See
172. 1994. Human Genome Research and the Public Interest:Progress Notes from an American Science Policy Experiment. Am. J. Hum. Genet., 54:121 One goal of the Human Genetics Education Section of the Ethical, Legal, and Social Implications Branch of the National Human Genome Project is to have professional and public deliberations concerning the responsible use of new genetic information. See
173. Muller. May 29 1990. “Genetic Diagnosis and Screening of Children and Adults:Postnatal Genetic Testing”. May 29, Ad Hoc Committee of Experts on Bioethics, Council of Europe. A Committee of Experts of the Council of Europe notes that, to be fully informed in regard to genetic testing, people must know the following:(1) the purpose of the test; (2) the risks of the test, if any; (3) the fact that test results may be incorrect or that the test will produce an unanticipated finding; (4) the implications of a positive result; (5) the nature of the condition/ disease the test is intended to detect; (6) the options available to reduce the burden of the disease in the event of a confirmed positive test; and (7) the alternatives, if the individual decides not to have the test. See Id. at 136 (citing
174. 1994. Melanoma Gene Discovered. St. Petersburg Times, Sept. 1:6A col. 1
175. 1989. Risk of Skin Cancer Linked to Gene. Chicago Trib., May 25:4
176. 1992. Statement of the American Society of Human Genetics on Cystic Fibrosis Carrier Screening. J. Hum. Genet., 51:1443
177. 1990. The Cystic Fibrosis Gene:Medical and Social Implications for Heterozygote Detection. J.A.M.A., 263:313
178. 1992. The Introduction of Cystic Fibrosis Carrier Screening into Clinical Practice:Policy Considerations. Milbank Q., 70:629
179. 1993. Genetic Engineering Is Leading the Way. St. Petersburg Times, Jan. 10:6F col. 1 (reporting that scientists are examining several delivery systems for getting healthy genes into cystic fibrosis cells; one method is to shoot the genes into the cells by using a virus)
180. 1994. The Gene Dilemma:Plants and Animals Yield New Foods and Drugs. The Independent, Jan. 7:6 (transgenic animals have become sophisticated tools for medical research—with extra genes that turn them into living models for diseases; engineered mice can develop enlarged prostate glands, mimicking a common disorder in men)
181. Gasser and Fraley. 1989. Genetically Engineering Plants for Crop Improvement. Science, 244:1293
182. 1993. Gene Transfers Offer New Hope for Interspecies Organ Transplants. N.Y. Times, Oct. 19:3 col. 1 (at the annual conference on transplants between species, or xenografts, two groups reported in London that they had for the first time successfully inserted human genes into pigs and that these genes should render the pigs’ organs capable of being transplanted into humans without the devastating tissue rejection that commonly occurs when such transplants are made)
183. 1994. Gene Scientist with Warning Spurns Grant. USA Today, Nov. 18:3D (John Fagan, a scientist and professor of molecular biology with Maharishi International University in Fairfield, Iowa, withdrew from research projects and returned to the National Institutes of Health $613,882 in cash grants and planned to withdraw from grant proposals that were expected to be worth about $1.25 million, stating that he had become convinced that the genetic research he had been conducting could be harmful to humanity)
184. 1996. Serviceman Demoted in DNA Registry Trial. Tampa Trib., May 11:17 -Nation/World, col. 2 (an Air Force sergeant was demoted and sentenced to 14 days hard labor for refusing to give a blood and saliva sample for a DNA registry designed to help identify servicemen's remains, declaring:“It is our God-given right to maintain possession of our genes,” and contending that the Pentagon did not have adequate safeguards to prevent the DNA from being used for other purposes)
185. 1995. Almost Anything Goes in Birth Science in Italy. N.Y. Times, Apr. 4:A14 col. 3 (following several unique reproductive procedures in Italy and a newspaper's question, “A pregnant man?,” a legal vacuum is said to exist in Italy in the area of reproductive technology and has brought charges that the country has become the Wild West in a rapidly shifting field of biomedicine that carries profound ethical as well as social and health implications; politicians say Italy has become a mecca for foreign women who come there for “procreative tourism")
186. 1995. Italian Doctors Write Code of Ethics for Fertility Clinics. St. Petersburg Times, Apr. 16:13A col. 2 (framed as part of an urgent appeal to Parliament for controlling legislation, a new physicians’ code of ethics has gone into effect that forbids certain biogenetic practices that have drawn widespread criticism inside and outside Italy) Annas, supra note 133
187. Lappe. “Risk and the Ethics of Genetic Choice”. In Prescribing Our Future 57 supra note 141
188. Caplan. “Neutrality Is Not Morality:The Ethics of Genetic Counseling”. In Prescribing Our Future 149 supra note 141
189. Vargas and Wilkerson. 1987. “Defining Our Cultures and Bridging the Gap”. In Strategies in Genetic Counseling:Religious, Cultural and Ethnic Influences on the Counseling Process Edited by:Magyari, Paul and Bieseker. 167–87.
190. Friedman. 1989. Progress Toward Human Gene Therapy. Science, 244 June:1275 (discussing strategies for gene therapy, gene replacement, correction, or augmentation)
191. Begley. 1995. Promises, Promises. Newsweek, Oct. 9:60 (reports that five years of gene therapy have cured no one)
192. Gorman. 1995. Has Gene Therapy Stalled?. Time, Oct. 9:62 (asks if scientists may have pushed too far too fast in a race for breakthroughs in gene therapy)
193. Capron. 1979. Tort Liability in Genetic Counseling. Colum. L. Rev., 79:618
194. Steinbock. 1986. The Logical Case for “Wrongful Life,”. Hastings Center Rep., 16 Apr.:17 See, e.g., Grodin v. Grodin, 102 Mich. App. 396, 396–400, 301 N.W.2d 869, 870 (1980) (holding that a mother's duty arises at the time of conception and mothers have a duty to refrain from acts harmful to the fetus when they reasonably should know that they are pregnant). Wrongful conception suits are normal medical malpractice suits and if negligence is established, then the physician may be liable to the parents for the costs incurred in the operation and sometimes for the costs associated with the birth. See
195. Carroll. 1986. Parental Liability for Preconception Negligence:Do Parents Owe a Legal Duty to Their Potential Children?. Cal. W.L. Rev., 22:289 Wrongful conception cases also ask whether parents owe a legal cognizable duty to an unconceived future child. See
196. Andrews. 1992. Torts and the Double Helix:Malpractice Liability for Failure to Warn of Genetic Risks. Hous. L. Rev., 29:149152 A cause of action for wrongful birth exists when physicians fail to warn prospective parents that they are at risk of conceiving or giving birth to a child with a serious genetic disorder. The plaintiffs are the parents and the potential liability includes instances in which a reasonable physician should have known of the risk because the couple's previous child had a genetic disorder or because of the woman's advanced age. See
197. Fleisher, L., 1987. Wrongful Births:Where Is There Liability for Prenatal Injury?. Am. J. Diseases Children, 141:381
198. Steinbock and McClamrock. 1994. When Is Birth Unfair to the Child?. Hastings Center Rep., 24 Nov./Dec.:15 In wrongful life suits, the plaintiff is the child. Charges typically are brought on behalf of the child by the parents who allege that had the physician acted properly and non-negligently, the child would not have been bom at all. In essence, such suits allege that the infants would be better off never having been born and that they have been harmed or wronged by being born. See B. Steinbock, supra note 26, at 114–15
199. Bambrick. 1987. Developing Maternal Liability Standards for Prenatal Injury. St. John's L. Rev., 61:592 In wrongful impairment suits, the child is the plaintiff who accuses either the physician or the mother of negligently induced prenatal behavior that resulted in its birth and subsequent suffering. A key question in such cases is whether a pregnant woman has a legal duty to avoid negligent behavior that may injure her future child. See, e.g., Bombrest v. Katz, 65 F. Supp. 138 (D.D.C. 1946) Grodin v. Grodin, 102 Mich. App. 396, 301 N.W. 2d 689 (1980)
200. 1993. China's Eugenic Policy; Family Planning Nazi-Style. Ariz. Republic, Dec. 28:B4
201. 1994. China's “Inferior” People. St. Petersburg Times, Jan. 1:20A col. 1 (China has announced a new draft law that would use forced abortion, sterilization, marriage bans, and other measures to “avoid new births of inferior quality and heighten the standards of the whole population")
202. Brock. 1992. The Human Genome Project and Human Identity. Hous. L. Rev., 29:712 One professor of philosophy and biomédical ethics uses the concept of equal opportunity to analyze the potential long-term effects of the Human Genome Project (HGP) and observes that full realization of the equality of opportunity that is now within our reach is in deep conflict with the institution of the family. He asserts that the genetic knowledge and potential therapeutic capacities that the HGP likely will bring us will further strain our commitment to equality of opportunity and will force new decisions about the value of equality of opportunity relative to other social and political values and institutions. Our conception of ourselves as responsible agents and the likely undermining of a clear standard of normality and its consequent effect on how we define ourselves is also considered in light of the potential effect of the HGP. See
203. Clark and Clark. 1947. “Racial Identification and Preferences in Negro Children”. In Readings in Social Psychology Edited by:Newcomb, T., and Hartley, E., 169–78. An example of within-group discrimination is that of African Americans who have historically favored those among them with lighter skin tones, straighter hair, and “keen” or Anglo facial features over those who have a darker skin complexion, kinky, coarse hair, and broader facial features. Over the years, with minimal exceptions, these preferences have been reinforced by the majority of society resulting in greater opportunities for more Anglo-looking, African Americans and in- and out-group discrimination against African Americans with more African characteristics. Moreover, the myth of the genetic inferiority of blacks has been internalized by some African Americans, and it is conceivable that genetic manipulation will be favored by some in an effort to alter their fate within and outside of their culture. See, e.g.
204. 1988. Babies’ Huge Hospital Bills Pose High-Tech Dilemma. St. Petersburg Times, Oct. 16:1B (discusses how neonatal intensive care units in private and public hospitals in the Tampa/St. Petersburg area are struggling with rising costs for impaired newborns with premature birth identified by a neonatologist as the primary cause)
205. 1986. Caring for Newborns:Three World Views. Hastings Center Rep., 16 Aug.:18 For international views on caring for imperiled and impaired newborns, see
206. Eidelman. 1986. In Israel, Families Look to Two Messengers of God. Hastings Center Rep., 16 Aug.:18
207. Subramanian. 1986. In India, Nepal, and Sri Lanka, Quality of Life Weighs Heavily. Hastings Center Rep., 16 Aug.:20
208. Kimura. 1986. In Japan, Parents Participate but Doctors Decide. Hastings Center Rep., 16 Aug.:22
209. Rhoden. 1986. Treating Baby Doe:The Ethics of Uncertainty. Hastings Center Rep., 16 Aug.:34 (Swedish physicians tend to withhold treatment from the beginning from infants for whom data suggests a grim prognosis; British physicians are more likely to initiate treatment but withdraw it if the infant appears likely to die or suffer severe brain damage; American physicians tend to start treating any baby who is potentially viable and continue until it is virtually certain that the infant will die)
210. Nelson and Shapiro. 1995. The Role of an Ethics Committee in the Neonatal Intensive Care Unit. J. Law, Med. & Ethics, 23:27 For a discussion of IEC roles in resolving uncertainty and conflict in neonatal decisionmaking, see
211. Dubler, N., 1992. “Innocents Lost Deciding for Newborns”. In Ethics on Call 238–62.
212. Rushton and Glover. May 1990. “Involving Parents in Decisions to Forego Life-Sustaining Treatment for Critically Ill Infants and Children”. In Critical Issues in Clinical Care Nursing May, 206 (asserting that a balanced partnership between parents and professionals can be supported by attention to environmental Stressors, enhanced communication, networks of support, and institutional mechanisms for conflict resolution)
213. Anderson and Hall. 1995. Parents’ Perceptions of Decision Making for Children. J. Law, Med. & Ethics, 23:15 Futile care, unwarranted treatment, and do not resuscitate (DNR) are terms that probably are familiar to families with gravely ill newborns. However, laws such as the Americans with Disabilities Act, the Baby Doe Regulations, and the Emergency Medical Treatment and Active Labor Act probably are less familiar. Yet, these terms and laws and their implications are part of a new world of complicated decisions within the health care industry into which more families are thrust. See, e.g.
214. 1995. Doctors’ Opinions Vary Widely on Defining and Applying “Futility,”. Med. Ethics Advisor, 11 Mar. 29:1 (asserting that ethics committees should encourage or even require that physicians and patients communicate about the quantitative and qualitative value of aggressive medical treatment. “Quantitative futility” is defined generally as the extreme low probability that a patient will achieve the return of organ function and survive beyond two weeks; “qualitative futility” is defined generally as the probability that, while aggressive treatment may keep the patient alive, the patient's quality of life, based on criteria such as mobility, consciousness, and ability to communicate, is deemed irreversible and below an acceptable standard. The dilemma in meeting these criteria lies in their generality.)
215. She's Going to Die:The Tragedy of Angela Carder”. In Standard of Care 35 supra note 36
216. 1992. A Matter of Death and Life:Where Should German Doctors Draw the Line?. Newsweek, Nov. 16:55
217. 1993. also Brain-Dead Woman's Fetus Kept Alive. St. Petersburg Times, Apr. 24 (physicians tried to keep alive the 17-week-old fetus of a 28-year-old woman killed by a gunshot in the head at a projected cost of $3,200 per day or $336,000 for the 15 weeks needed to take the fetus to full term) Jordan III, supra note 37, at 1103 (discussing bodily autonomy and asserting that two issues are of particular importance for cases involving brain-dead pregnant women:(1) whether such women may be given abortions; and (2) whether their life support systems may be turned off while the fetus is still alive)
218. Furrow, B., Johnson, S., Jost, T., and Schwartz, R., eds. 1987. "The Right to Die"—Seriously Ill Newborns”. In Health Law 937
219. Moskop and Saldanha. 1986. The Baby Doe Rule:Still a Threat. Hastings Center Rep., 16 Apr.:8
220. Donhoff and Merkel. 1995. Not Compassion Alone:On Euthanasia and Ethics. Hastings Center Rep., 25:44 Some reasons given by parents for refusing treatment for disabled infants include their desire to prevent the infant from having to suffer during life and that the infant would be better off dead. However, considering Down Syndrome as an example, there is little agreement regarding whether suffering can be defined for others or whether some lives are not worth living. See, e.g.
221. Weil. 1986. The Baby Doe Regulations:Another View of Change. Hastings Center Rep., 16 Apr.:12 (the Baby Doe Regulations changed the attitude of society regarding the interests of the disabled and reminded physicians that there is often more uncertainty in their diagnoses and their prognostications than they have expressed in public)
222. 1994. Court Order to Treat Baby with Partial Brain Prompts Debate on Costs and Ethics. N.Y. Times, Feb. 20:20
223. Furrow. 1994. Baby K:A Legal and an Ethical Viewpoint. ASLME Briefings, 10 Summer:1
224. Clayton. 1994. Breathing for Baby K. ASLME Briefings, 10 Summer:1
225. Flannery. 1995. One Advocate's Viewpoint:Conflicts and Tensions in the Baby K Case. J. Law, Med. & Ethics, 23:7 See In re Baby “K” (Three Cases), 16 F.3d 590 (4th Cir. 1994)
226. Warren. 1973. On the Moral and Legal Status of Abortion. The Monist, 57:57 According to one scholar, personhood and the special moral status it involves cannot be based on anything so arbitrary as species membership, but must be defined in terms of the possession of certain psychological and cognitive capabilities, including consciousness, self-consciousness, reasoning, self-motivated activity, and language, and that while all of these capacities may not be necessary for personhood, a being who possessed none of these characteristics is clearly not a person. See B. Steinbock, supra note 26, at 52 (citing
227. Swanson and Van McCray. 1994. Doing All They Can:Physicians Who Deny Medical Futility. J. Law, Med. & Ethics, 22:318 In addition to factors that determine when and why physicians continue or terminate futile care, such as ambiguous clinical information regarding a patient's chances for survival and the persistence of family members, physicians bring to bear on their clinical decisions a variety of personal attitudes, values, concerns, and interests, along with legal defensiveness, religious vitalism, authoritarianism, and intolerance of ambiguity. See
228. Ackerman, T., and Strong, C., 1989. A Casebook of Medical Ethics,:217 (observing that increased litigation about bad medical outcomes has strongly influenced physicians to consider the medicolegal implications of their clinical decisions. Concern to prevent a lawsuit or acquire evidence to defend a potential suit sometimes provides a reason to perform additional diagnostic tests or to alter therapy provided.)
229. Friedman. 1990. Taking the Camel by the Nose:The Anencephalic as a Source for Pediatric Organ Transplants. Colum. L. Rev., 90:917 Historically, death occurred with the simultaneous cessation of cardiopulmonary function, the cessation of all cognitive activity, and the cessation of all responsive activity. However, medical advances such as the development of mechanical substitutes for hearts and lungs, has forced reconsideration of the definition of death. The definition of death ought to be functional and the legal, psychological, historical, sociological, anthropological, and medical functions of defining death may differ. See
230. 1987. Hospital Issues Policy on Brain-Dead Babies’ Use as Organ Donors. L.A. Times, Dec. 19:33 Part I, at
231. Glover and Rushton. 1995. From Baby Doe to Baby K:Evolving Challenges in Pediatric Ethics. J. Law, Med. & Ethics, 23:5
232. 1994. New Medical Quandary at Heart of a Trial. N.Y. Times, Aug. 3:17
233. Dubler. 1992. “Phantoms at the Bedside”. In Ethics on Call (identifying several phantoms at the bedside of the dying who seek to affect what happens and who assume many different guises such as the following:risk managers, paid to protect the hospital from lawsuits; the DRG system that determines what the hospital is paid to take care of patients; the utilization review team, making sure that the hospital's limited resources are used where they will do the most good; the discharge planner (usually a social worker), who helps plan the move from the hospital; and interlopers and roving strangers, who often view patients as pawns to further a particular political agenda)
234. Capron. 1985. When Weil-Meaning Science Goes too Far. Hastings Center Rep., 15 Feb.:8 (identifies two sets of primary issues:(1) the impossibility of acquiring informed consent not only to the unusual research that this surgery represented and the attendant media invasion of the family's and baby's privacy; and (2) the undefined role of Baby Fae, who was “volunteered” for the innovative, path-breaking procedure—whether she was collaborator in the discovery of useful knowledge, or a victim of well-meaning science)
235. 1984. Is “Baby Fae” Transplant Worth It? Experts Mixed. Am. Med. News, Nov. 9:1 col. 3
236. Regan. 1985. The Other Victim. Hastings Center Rep., 15 Feb.:10 (asserts that the baboon, Goobers, is also a victim because contrary to charges of “anthropomorphism,” baboons feel pain, remember what it is like, intentionally seek to avoid it, and fear its source)
237. Scott. 1993. The Terrible Imbalance:Human Organs and Tissue for Therapy—A Review of Demand and Supply. J. Con-temp. Health L., 9:139151 (Professor Peter Singer, a well-known commentator on human attitudes about animals, describes the use of primates as organ donors as “speciesism. logically parallel to racism and sexism")
238. Nelson. 1992. Transplantation Through a Glass Darkly. Hastings Center Rep., 22 Sept./Oct.:6 (asking if baboons should become spare parts bins for human beings and stating that cross-species transplantation crystallizes a certain kind of moral conflict between humans and other animals)
239. McCormick. 1985. Was There Any Real Hope for Baby Fae?. Hastings Center Rep., 15 Feb.:12
240. 1994. Baby Fae:A Legacy of Hope. St. Petersburg Times, Oct. 26:14A (Dr. Leonard Bailey, chairman of surgery at Loma Linda University School of Medicine, who has not implanted a baboon heart since Baby Fae, states that the legacy with Baby Fae is that she stimulated organ donations and the concept that babies could be recipients of donor organs)
241. Breo. 1984. Interview with Baby Fae's Surgeons. Am. Med. News, Nov. 16:13 (surgeon John Najarian stated prior to Baby Fae's death that the operation was not good clinical experimentation and it was doomed to failure because science is not yet at the point to overcome the fact that the human body will reject a transplanted animal organ)
242. Schwartz. 1985. Bioethical and Legal Considerations in Increasing the Supply of Trans-plantable Organs:From UAGA to “Baby Fae,”. Am. J.L. & Med., 10:397430 In 1963, transplants of baboon and chimpanzee kidneys into humans had been performed. Similarly, in 1964, the heart of an ape was transplanted into a 68-year-old man who died four hours after the operation. See
243. Palca. 1995. Organs for Human Patients?. Hastings Center Rep., 25 Sept./Oct.:4
244. Hanson. 1995. The Seductive Sirens of Medical Progress:The Case of Xenotransplantation. Hastings Center Rep., 25 Sept./Oct.:5 (presenting three irresistible themes of medical progress:scientific uncertainty/clinical imminence; confidence in controlling risk; and the rational and the real versus the emotional and the hypothetical)
245. 1995. Pig Livers to Be Used in Tests on Critical Patients. The Olympian, July 29:A4
246. 1996. Baboon Marrow Recipient Leaves Hospital with Cheer. USA Today, Jan. 5:3A col. 3 (After Jeff Getty, an AIDS patient, received a groundbreaking infusion of baboon bone marrow, physicians theorized that because baboons are naturally resistant to HIV, the virus that causes AIDS, the infusion would boost Getty's immune system, making it possible for him to resist the opportunistic diseases to which AIDS patients are susceptible)
247. Chasnoff, I., ed. 1988. “Marijuana and Cigarette Smoking During Pregnancy:Neonatal Effects”. In Drugs, Alcohol, Pregnancy and Parenting 73–89. (maternal cocaine abuse can result in life-threatening cardiovascular and central nervous system complications, low birth weight, lower gestational age at delivery, irritability, poor feeding patterns, and increased tremulousness)
248. Daniels. 1993. “The Politics of Vengeance:The Case of Jennifer Johnson”. In At Women's Expense:State Power and the Politics of Fetal Rights Edited by:Daniels, C., 97–131. For an in-depth discussion of the Johnson case and the primary social and legal issues surrounding perinatal drug abuse, see
249. Garcia. 1992. Drug Addiction and Mother/Child Welfare:Rights, Laws, and Discretionary Deci-sionmaking. J. Legal Med., 13:129
250. Garcia. 1993. Maternal Drug Abuse:Laws and Ethics as Agents of Just Balances and Therapeutic Interventions. Int'l J. Addictions, 28:1311
251. King. 1991. Helping Women Helping Children:Drug Policy and Future Generations. Milbank Q., 69:595
252. Professor of Interdisciplinary Arts and Sciences, University of South Florida. Address correspondence to Professor Garcia at Office of the Dean, CPR 107, College of Arts and Sciences, University of South Florida, 4202 E. Fowler Ave., Tampa, FL 33620–5550. The author expresses appreciation to Professor Robert Batey for his editing and stimulating discussions, to Aimee Fonte for her library work, and to Marianne Bell, who skillfully and patiently solved my computer problems.