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Bioethics and the Law
University of Kansas School of Law
Williams, Deborah H.

Law and Bioethics

Professor Williams

Fall 2012

What is Bioethics?

A. Bio: pertaining to life or living organisms

B. Living organisms are comprised of cells (cell theory)

C. Hierarchy of Life:

1. Cell à tissue à organ àorgan systemà organism àpopulation à community à ecosystemà biosphere

2. Ethics: that branch of philosophy or reasoned inquiry that studies both the nature of and the justification for general ethical principles governing right conduct

D. Terminology (From Chapter 1: An Introduction to the Study of Ethics and Ethical Theories)

1. Morality: society’s basic instructions about what people may and may not do. Two branches:

2. Scientific- empirical; does not evaluate the worth of moral judgments in any way (metaethics)

3. Philosophical- evaluates important moral concepts from a logical perspective; establishes theoretical justifications for what is right and wrong (normative ethics).

II. Science and Process (A Rational Decision Making Tool)

A. Scientific Method

1. Observation

2. Hypothesis (prediction)

3. Experimental Design

4. Data

5. Analysis

6. Conclusion

a. Explanation, refute or support hypothesis, make predictions

7. Peer Review

8. Publication

B. Continuum of Scientific Evidence

1. Hypothesis (educated guess) low level of evidence

2. Theory- supported hypothesis via empirical evidence, may be refuted

3. Law- Very, very, well substantiated, unlikely to be refuted

a. Laws of Thermodynamics

b. Law of Gravity

c. Law of Segregation

d. Law of Independent Assortment

4. But is there a process to Ethics? Is there an Ethical Methodology?

a. Make observations

b. Collect data

c. Analyze data

d. Make generalizations? (Policy or law)

5. Ethics and Process (Moral Justification)

a. Moral value judgment

b. Rule

c. Principle

d. Theory

e. Moral Justification (purpose of which is to generalize, apply to similar situations)

C. Should Mr. Jones’s pacemaker be deprogrammed?

1. See analysis, p. 3-4.

2. Consider.

a. P1: Human fetuses are human

b. P2: Human fetuses are alive

c. P3: It is wrong to kill human life

d. C: Therefore, it is wrong to kill human fetuses

3. Consider this…

a. P1: Human cancer cells are human

b. P2: Human cancer cells are alive

c. P3: It is wrong to kill human life

d. C: Therefore, it is wrong to kill human cancer cells

D. P1-3 are logically sound at level of moral value judgment and scientifically sound (recall cell theory) but generalization to any and all cells is problematic at the highest level of ethical analysis: moral justification.

III. Principle List

A. Autonomy: individual choices and actions should not be constrained by others

B. Non-malfeasance (Do No Harm) duty not to inflict evil, harm or risk of harm on others

C. Beneficence: one has a duty to help others by doing what is best for them

D. Confidentiality- implicit promise that divulged info will not reveal.

E. Distributive justice: benefits and burdens ought to be distributed equitably where not one person or group bears a disproportionate share of benefits or burdens.

F. Truth Telling (Honesty, Integrity) One ought to disclose all pertinent information about a person to that person.

G. Professional Responsibility-duty to observe rules governing relations with patients, colleagues, profession, and community.

H. Ethical Issues in Modern Medicine John Arras and Robert Hunt

I. Culture

1. Must consider issue in light of cultural or societal context.

2. Judgments are relativistic (what is tolerable in one context might not be in another). Right, wrong…or we just don’t know for the moment.

J. Feelings

1. Ethical disagreements would seem pointless

2. “To assign feelings ultimate authority… would put the cart before the horse… feelings may provoke us to moral inquiry, but the inquiry does not terminate there.”

K. Utilitarianism

1. Jeremy Bentham (1748-1832); John Stuart Mill (1806-1873).

2. The greatest happiness principle: actions are right in proportion, as they tend to promote happiness; wrong, as they tend to produce the reverse of happiness.

3. Measure happiness in terms of “happiness units”

4. The utility of an action is determined by its tendency to promote or produce happiness

5. The right action promotes the greatest utility (promotes the greatest happiness).

6. Two Branches of Utilitarianism:

a. Act Utilitarianism: examine the effects of acts (in the particular)

b. Rule Utilitarianism: assess the effects of classes or kinds of actions.

7. Example: boy with leukemia—tell the truth about prognosis or engage in “merciful deception”. Act–the specific case, Rule–general case-outcome may be different.

8. Features of Utilitarianism

a. Consequences are key— “teleological”

b. The relevant question in assessing the moral quality of an action is what will be the results.

c. The gauge is the overall effects (not short or long term effect). Consider your actions in light of their overall consequences.

9. Objections to Utilitarianism

a. It is Unworkable:

i. Happiness is unclear, will never agree on a definition (utilitarian would argue we need not suppose we mean something different by the term “happiness”).

ii. We can’t be sure that our actions will produce the circumstances that lead to happiness

iii. One person’s notion of happiness incommensurable with another’s notion of happiness

b. It is Inadequate

i. Moral ties, voluntary associations prevent achieving greatest happiness—($5 to repay debt rather than give to homeless person).

ii. Some actions are just and fair… or not (slavery)

iii. Physician’s obligation to patient (appt) v. emergency patient (no appt.)

L. Kant

1. Kantian Ethical Theory

2. Immanuel Kant (1724-1804)

3. Consequences do not make an action right or wrong; rather it is the principle upon which an agent acts that is the morally decisive factor.

4. Deontolo

ay that if they were separated, the weaker one would die but the stronger one would have a good chance of survival.

c. The surgical separation would itself cause the death of the weaker twin.

d. Parents do not want the twins separated-it is against their religious beliefs to choose between the two infants.

e. Surviving twin will require expensive medical treatment; parents have little money and live in a relatively undeveloped country, which they will return to soon.

f. The physicians have petitioned the court for an order requiring the parents to consent to surgery.

IV. Human Reproduction and Birth

I. What is Bioethics?

A. Compare Science and Ethics as processes

1. Compare Utilitarianism and Deontological (Kantian) philosophical perspectives. What are some objections to both?

2. Distinguish Act v. Rule Utilitarianism

3. Review list of perspectives outlined on p. 23-25

4. What are codes of ethics or oaths?

B. Ms. Baggins—Class Activity

1. Ask what are the legal issues?

2. Ask what are the ethical issues?

3. Analyze in light of Kantian and Utilitarian ethical theories.

4. Ask what actions should the hospital take?

1. Maintain Ms. B. on life support v. remove her?

2. Keep her on life support, deliver baby alive? Who gets custody?

3. How does her choice of beneficiaries influence your analysis?

II. Personhood

A. There is no consensus on when the status of “personhood” first attaches

B. Human stock: a human being is the reproductive product of two other human beings.

C. When does the human stock become a person for purposes of tort law?

1. At conception?

2. At quickening?

3. At viability?

4. At birth?

5. A year after birth?

6. Upon physical maturity?

7. Is personhood a “bundle of rights” p. 36, note 3?

D. Personhood

1. “The most difficult questions tend to arise at the very beginning and very end of life”

2. Historical examples of when one was considered to be a person:

3. Religious groups: at conception-union of sperm and egg

4. Aristotle-3 stages of person

1. 1.vegetable (conception)

2. 2.animal (in utero)

3. 3. Rational (after birth)

5. Ensoulment- 40/80-90 days (male/female) after birth

6. St. Thomas Aquinas: “quickening”—14-18 weeks post conception-

7. Michael Tooley (1983) concept of self—many weeks after birth, used to justify infanticide.