Health Law Techers Conference Special Section
John B. Neibel Honored with Creation of Scholarship in Health Law
Professor
John B. Neibel was the honoree at the 22nd Annual Law Gala and
Auction held by the University of Houston Law Center and the Law Alumni
Association on April 18, 1998. Guests at the Gala contributed the initial
funding of the new "John B. Neibel Scholarship." The scholarship will be
awarded annually to a health law student.
Neibel has been involved with the Law Center for many years. He began as a student, graduating in 1956, and has served as a professor for over 40 years and as dean from 1966-1974. Neibel was instrumental in initiating the Law Center's health law program. In addition to teaching courses in health law, he convinced several individuals to begin teaching health law courses at the Law Center as adjunct professors, including Dr. Margery Shaw, founder of the Health Law & Policy Institute. Neibel is also credited with working with a group of students to start the Health Law Organization. Contributions to the scholarship fund may be sent to the University of Houston Law Foundation.
Health Law Teachers Conference Highlights
Rep. Coleman Receives
Institute's Distinguished Service Award
At the meeting of the Health Law & Policy Institute's Advisory Board held on April 8, 1998, Director
Mark A. Rothstein presented the Institute's annual Distinguished Service
Award to State Representative Garnet F. Coleman. Rep. Coleman has been
instrumental in helping the Institute secure funding and in generating
new ideas and opportunities for the Institute, including the legislative
fellowships and the Update on Health, the monthly publication of
the Institute for the Texas Legislature.
University of Houston Awards Presented
Laura F. Rothstein was honored with the Ethel M. Baker Faculty Award for her role in promoting interchange between the Law Center and the broader community. An expert on affirmative action and admissions issues, she has educated the legal, educational, and journalistic communities on affirmative action issues. Her relationship with members of the State Bar of Texas led to the State Bar's Symposium on Excellence and Diversity in the Profession being held at the Law Center. As a national expert on disabilities law, Rothstein has served as mentor, consultant, and critic for reasonable accommodations and integration of persons with disabilities into employment and public facilities. Rothstein is the Associate Director for Development at the Health Law & Policy Institute.
Beverly Rudy '55 received the Law Alumni Association's President's Award for her outstanding service and dedication. Since graduating 43 years ago, she has remained an active participant in Law Center affairs. She is a former member of the advisory board of the Health Law & Policy Institute and has been involved in alumni outreach events and the Acquisitions Committee for the Law Auction and Gala.
Charlie Parker '74 received the Law Alumni Association's award for Alumni of the Year in recognition of his exceptional achievements and noteworthy contribution to the Law Center. A principal of Hill & Parker, he is the immediate past president of the University of Houston Law Foundation, the fundraising arm of the Law Center, and a past president of the Law Alumni Association. Previously, he has received the Dean's Award and the Faculty Award. He is a member of the Health Law & Policy Institute's advisory board.
A number of health law students also received awards. Cheryl Erwin, President of the Health Law Organization, received the Prudential Life Insurance Scholarship for academic excellence. Melanie Dolgoff received the West Publishing Co. Corpus Juris Secundum Award for receiving the highest grade in Contracts. The Judge Mary Bacon Scholarship for a third year student exemplifying professionalism while maintaining a two generation household was awarded to Jacquie Brennan. Crystal Moffett was awarded the Barksdale Stevens Award.
Focus on Adjunct Professor
Mark W. Coffin
Mark W. Coffin has been teaching Business Aspects of Health Law at the University of Houston Law Center since 1996. He has practiced corporate, securities and health law for thirteen years. Currently, he leads the commercial law team of the Houston office of New Orleans-based Adams and Reese. He started his practice at Wood, Lucksinger & Epstein in 1986 and moved to Winstead Sechrest & Minnick P.C. in 1991 and to Brewer and Pritchard , P.C. in 1993, before joining Adams and Reese, L.L.P. in 1995.
Mr. Coffin received a B.A. in Economics from Bowdoin College in 1981 and a J.D. from the University of Houston Law Center in 1984. He also serves as Director of the Childress Foundation, Chair of the Childress Foundation Mentorship Program, and Director of the Texas Liver Coalition.
The Health Law & Policy Institute offered a Health Legislation Seminar taught by Professor Laura F. Rothstein, which featured the following outstanding guest lecturers:
Chris Bell, Houston
City Council Member, At-Large, Position 4
Ken Bentsen, U.S.
Representative
Chet Brooks, former
State Senator
Grover Campbell,
University of Houston Vice Chancellor for Governmental Relations
Paul Colbert, former
State Representative
Garnet Coleman, State
Representative
Steve Collins, Director
of Legal Division, Texas Legislative Council
Debra Danburg, State
Representative
Dianne White Delisi,
State Representative
Mary desVignes-Kendrick,
Director, City of Houston Dept. of Health and Human Services
Mario Gallegos, State
Senator and former State Representative
Bob Gammage, former
Texas Supreme Court Justice, U.S. Representative, State Senator, and State
Representative
Patty Gray, State
Representative
Gene Green, U.S.
Representative
Jack Harris, County
Commissioner for Brazoria County, former State Representative
Scott Hochberg, State
Representative
Bruce Levy, Executive
Director of Texas State Board of Medical Examiners
Jon Lindsay, State
Senator, former Harris County Judge
Gracie Saenz, Mayor
Pro-Tem, Houston City Council Member, At-Large, Position 1
Marc Samuels, Attorney
Sue Schecter, former
State Representative
Eleanor Tinsley,
Houston City Council Member Emeritus
Mitzi Vorachek, Director
of Community Education, Houston Area Women's Center
Royce West, State
Senator
John Whitmire, State
Senator and former State Representative
Click Here for Additional Health Legislation Seminar Photographs
H.L.O. Elects New Officers
The new officers of the University of Houston Health Law Organization for 1998-99 are:
President...............................Alicia
Kramer
1st Vice President..................Amy
Rosenblum
2nd Vice President.................Christine
Colleen
Treasurer...............................Cindy
Bilbrough
Recording Secretary...............Karla
Tornyos
The Institute extends its thanks to the Health Law Organization for its generous gifts of a document scanner and a microwave oven.
Institute's Legislative Fellows Announced
The Health Law & Policy Institute will be sending four post-graduate legislative fellows to Austin, Texas this summer to work for a year at the Capitol. Beginning on June 1, 1998, Jennifer Soffer will be working for State Representative Garnet Coleman, and Beth Devery will be working for State Representative Dianne White Delisi. Cynthia Gorman will be working for the House Public Health Committee commencing on August 1, 1998. Frank Kolb will work as a Fellow for the Senate Committee on Health and Human Services.
Publications. . .
Mary Anne Bobinski
Seth J. Chandler
Seth J. Chandler
Gary Cacciatore '94 has recently accepted a position as Director of Regulatory Affairs at Cardinal Health. He has been an Assistant Professor in the Department of Clinical Sciences and Administration in the University of Houston College of Pharmacy and has been an adjunct professor teaching Food and Drug Law at the Law Center since 1996.
Kevin Williams '95 has accepted a position as Policy Director of the California Pan-Ethnic Health Network, a coalition of over 50 multicultural health care organizations which promotes changes to the health care delivery system that improve the status of minorities. He has been working as General Counsel and Assistant Grants Administrator for Berkeley Youth Alternatives, a health promotion and education organization serving "at-risk" minority children, and plans to continue as a Senior Advisor there. He is a former member of the Health Law & Policy Institute's research faculty.
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of Health Law News
Health Law
Teachers Conference Special Section
THIS SPECIAL SECTION FEATURES ARTICLES RELATING TO SELECTED TOPICS THAT WILL BE PRESENTED BY THE AUTHORS AT THE 19th ANNUAL HEALTH LAW TEACHERS CONFERENCE, WHICH WILL BE HELD JUNE 4-6, 1998 IN HOUSTON, TEXAS AND SPONSORED BY THE Health Law & Policy INSTITUTE AND THE AMERICAN SOCIETY OF LAW, MEDICINE AND ETHICS.
The Enduring Significance of the Tuskegee Syphilis Study
Larry I. Palmer
Professor of Law
Cornell University School
of Law
On
May 16, 1997, President Clinton apologized to the survivors and family
members of subjects of the Tuskegee Syphilis Study. Three months earlier,
Home Box Office first aired its fictionalized account of the study conducted
by the United States Public Health Service to document the long-term effects
of untreated syphilis in the "Negro Male." Both the release of the film,
Miss Evers’ Boys, and President Clinton’s apology have made the
Tuskegee Syphilis Study a part of our public consciousness.
Labeling the participants in the study, or those who failed to stop it once penicillin was discovered, as "racists" or "bad" professionals does not help explain this tragedy. Rather, the many physicians, nurses, and public health officials who participated are examples of good people working under bad institutional arrangements.
The lack of adequate resources to continue a pilot treatment program for rural African-Americans in 1932 created the initial impetus for the study of untreated syphilis in over 400 unconsenting subjects. Inspired by their faith in "medical progress," health care professionals—both Caucasian and African-American—convinced themselves that in a few years their "data" would demonstrate to federal officials the need to restore funding for the treatment program. The lack of adequate access to health care services by lower socio-economic groups remains an enduring feature of health care in America.
The legal response to the media revelations of the existence of this study is typical of our tendency to find "fault" when something terribly wrong occurs in the health care system. Not surprisingly, in 1973 a lawsuit seeking damages for survivors and their representatives was filed. This lawsuit, alleging that the subjects were selected solely based on their race, was settled without trial. While vindicating lawyers’ need for a sense of justice, one wonders if the threat of paying compensation to unconsenting subjects is an effective deterrent to government officials who authorize unethical research in clinical settings.
At the political level, the revelations about the Tuskegee Study led to the creation of a national commission and the establishment of a statutory and administrative framework for regulating federally sponsored research. Faith in the effectiveness of regulation should not mislead us into believing that federally mandated methods of supervising the taking of consent is optimal from a social perspective. There is no evidence that such a regulatory framework is effective in preventing future studies—which in retrospect we judge ethically inappropriate.
We have become so imbued with the health benefits of research, particularly genetic research, that we need the Tuskegee Study of Untreated Syphilis in the Negro Male to remind us of the pitfalls of having blind faith in either medical progress or the capacity of law to prevent harm to those who become subjects of medical mishaps.
Complementary and Alternative Medicine
Kathleen M. Boozang, J.D.,
LL.M.
Professor and Director
Health Law & Policy
Program
Seton Hall University School
of Law
Politicized
medicine makes bad medicine. An observer of the unabating squabbles over
complementary and alternative medicine (CAM) might naively suggest that
the questions about CAM should be rather easily resolved by traditional
scientific methods. Controlled, double-blind testing has answered such
questions about conventional medicine for decades. With CAM, however, traditional
scientific method is often seen not as the solution, but as the problem.
Largely unresolved are questions of whether specific CAM methods benefit
patients, whether CAM treatments should be funded for clinical trials,
what kind of licensure should be required to provide specific CAM treatments,
whether a physician can lose her license for offering CAM to her patients,
and whether third party payors should reimburse for CAM.
The confusing morass that comprises CAM began with the debate about its moniker and continues with the murky definitional question: What is CAM? It has been broadly defined as that which is not generally taught in medical schools, is not offered by hospitals, or is unreimbursed by payors. But negative definitions are unhelpful to most, who really want to know whether we are talking about acupuncture, biofeedback, massages and chiropractic; aroma therapy, art therapy, herb therapy, color therapy, light therapy, and music therapy; homeopathy, naturopathy, Indian Ayervedic medicine and traditional Chinese medicine; or coffee enemas and chelation therapy.
Although much of the medical profession vociferously objects to most of what CAM offers, increasing numbers are finding themselves pressured to co-manage or themselves provide some type of alternative therapy. In some cases, sufficient evidence exists of treatment efficacy, but in others, the evidence is anecdotal or non-existent, thereby compelling the physician to make a difficult choice in the face of patient demands and, in some instances, payor approval.
The blame for much of the polemic rests squarely with physicians, who have a well-documented history of suppressing non-conventional treatment methods and practitioners. Physicians must also assume some of the responsibility for CAM's appeal to patients who seek compassionate health care, choice, some measure of control, and honesty when medicine has nothing to offer. And finally, conventional medicine's demand that alternative treatments satisfy rigorous testing to establish their efficacy sounds disingenuous given the number of conventional treatments that have never been subjected to such standards.
At a policy level, Congress and the NIH grapple with disagreements about the appropriate budget, status and powers that should be afforded the NIH Office of Alternative Medicine. Debates continue about whether alternative therapies are unique and therefore should not be subject to the traditional standards of double-blind clinical trials. Even if agreement is reached about the appropriate methodology for testing CAM, questions persist about funding levels, as many proponents of alternative medicine remain concerned about continued biases in favor of conventional medicine.
Some managed care organizations are experimenting with CAM coverage, in some instances at the instigation of an "Alternative Provider Mandate Statute" (since pre-empted by ERISA), and in others, in an attempt to attract members, because they think it works, or in the hope that it is more cost-effective for some conditions. In any case, it is unclear how managed care organizations are deciding what to cover, who to include in their alternative provider networks, and what role primary care physicians will play in monitoring patient access to CAM. It is also not clear how CAM access will affect the payors' financial health.
It is past time that the medical profession considers what alternative medicine has that might be of value to patients, not because managed care compels it, or because it is the only way to maintain a sufficient patient base, but because it might benefit patients. On the other hand, proponents of alternative medicine must cooperate with conventional researchers to produce reliable studies of the efficacy of the various treatments that they believe will benefit patients. In short, consideration of the myriad issues raised by alternative medicine should proceed without the polemics.
Protecting Health Care Consumers: Assuring Good Information
Arnold J. Rosoff
Professor of Legal Studies
and Health Care Systems
The Wharton School, University
of Pennsylvania
Recently,
in California, the frustration of some consumers with managed care was
dramatically caricatured when a man spread an anti-HMO banner on the ground
for TV-news helicopters to film before taking his own life with a rifle.
(The banner actually carried a melange of messages: "HMOs are in it for
the money!! Live Free, Love Safe or Die."). While this bizarre event sheds
little light on the problems of managed care, it may add to the considerable
pressure to "do something" about the perceived excesses of health care
cost containment. The big question, as the clamor for consumer protection
grows, is "Do what?"
Concerned citizens cluster mainly in two camps, one calling for more government regulation to prevent exploitation of a vulnerable public, the other inclined to rely on market forces to keep MCOs (managed care organizations) from taking cost containment too far. The former camp has been active of late, generating a torrent of state and federal laws and proposed laws that would, among other things, mandate minimum hospital stays for maternity care (to stop "drive-through deliveries"), impose a "reasonable layperson" standard to measure the need for emergency room care, prescribe mechanisms for appeal of coverage denials, and limit financial incentives for cost containment. These approaches seek to control how MCOs are structured and operate. In many ways, they would roll back cost containment steps taken in the last decade; thus, they find considerable support among the provider community. Still, with consumer groups ready to do battle on the legislative and litigation fronts, the outcome is tough to call.
The other main camp favors market solutions based on informed consumer choice. Market advocates doubt the ability of government regulation to accomplish the promised objectives and warn that "provider protection" is more likely to result than "consumer protection." Further, they fear the costs of regulation, many of which are off-budget and defy quantification. Finally, noting the tendency of regulation to standardize organizational and operating formats, market enthusiasts argue that health care quality and cost, not institutional arrangements, should be the real issue. But market-based solutions are hindered by the limited choices many Americans have among health plans and the complexities of achieving the ideal of informed consumer choice.
Whatever camp one belongs to, good information is key. The available information is too often limited in accessibility, accuracy, precision, and clarity; and material differences in health plans may not be evident, even to savvy consumers. Effective reform will require making information readily available in a form that is usable and understandable.
One model to emulate is the Federal Employees Health Benefits Program (FEHBP), which has long helped federal employees choose among health plans by requiring relevant information to be presented in a standardized format. Internet technology can now bring this type of information display to a broader group of consumers. Electronic delivery can lower the cost of information, assure that it remains up to date, and make it possible to tailor the information to the user's needs. Both the government [see, e.g., "www.medicare.gov/managedcare.html#compare" and ""www.hcqualitycommission.gov"] and the private sector [see, e.g., "www.ncqa.org" and "www.healthscope.org/core.htm"] maintain user-friendly websites to assist shoppers. Employers could use their purchasing clout to get healthcare providers and/or insurers to offer information in standardized comparison formats.
I would argue that employers have an ethical obligation, and perhaps a legal duty, to assist their employees in this way. Taking on this new role raises knotty issues and may pose risks, but failing to do so is risky too. The future of health care is, in countless ways, about the gathering, analysis, management, and dissemination of a rapidly expanding universe of information. Those who grasp and manage this reality will lead that future.
The Recent Rise of Patients' Rights in Japan
Robert B Leflar
Professor of Law
University of Arkansas School
of Law
Tradition
has it that medicine as practiced in Japan is as paternalistic as anywhere
in the world. The "gods in white coats," as the Japanese phrase goes, stand
at the top of a rigid social hierarchy in health care, with patients in
a subordinate station and nurses and technicians having far lower status
than in America. Physicians give the orders, without explanation; patients
submissively comply. Or so goes the story.
But in the past decade, Japanese medicine has entered a state of ferment. The medical profession has come under increasingly intense scrutiny as the media has focused on such topics as deaths in drug trials of patients uninformed of the experimental nature of the drugs they were given, the HIV-contaminated blood scandal, and excessive drug prescribing practices. Despite Japan's excellent health statistics, calls for recasting the traditional paternalistic doctor-patient relationship have become sufficiently pervasive that the medical profession itself has accepted the need for incorporating something called infomudo konsento (for lack of any satisfactorily analogous phrase in the Japanese language) into medical practice.
Japanese courts have long accepted as a formal matter the principle of patients' right of informed consent. Unlike American courts, however, the Japanese judiciary has not yet provided much impetus toward the elaboration of informed consent rights. The pressures for change have come in large part from sources peculiar to the Japanese experience.
For example, in the debate over brain death and organ transplantation (a controversy similar in intensity to the abortion debate in the U.S.), the concept of informed consent has served as a weapon of convenience to both proponents and opponents of the recognition of brain death as "death." After long debate, the Japanese parliament last year finally enacted a law permitting brain death declarations -- but only if the organ donor and her family give written consent to the use of brain death criteria in the donor's individual case. The rhetoric of this debate helped familiarize the public with the informed consent idea, but it is informed consent with a peculiarly Japanese twist.
Not long ago, cancer diagnoses were routinely cloaked from virtually all Japanese cancer patients. Patients received no information about the drugs prescribed for them. As a condition of receiving surgical treatment, patients had to agree to documents purporting to waive their right to sue or complain, and they were refused access to their own medical records.
All these practices still exist but are now in various stages of decline. Patients' rights groups have sprung up around the country, and attitude shifts against traditional medical practices are evident in public opinion polls. This movement connects with the drive for participatory democracy in Japan as it has elsewhere. The campaign's watchword of "transparency" is a call for openness in decisionmaking in the sphere of health care as well as in that of politics. The gradual recognition of patients' rights in health care is among the most significant developments in contemporary Japanese culture.
Prescription of Controlled Substances for the Relief of Pain
Sandra H. Johnson
Professor of Law, Center
for Health Law Studies
Saint Louis University School
of Law
Director, Mayday Project
at ASLME
The
medical capacity to relieve pain is greater than ever, but doctors are
still fearful of legal sanctions when pain relief requires the use of controlled
substances. Doctors are so concerned about the risk of legal penalties
that they report changing their practices when they are aware that their
prescriptions are being monitored. In survey results released in January
by New York State's Public Health Council, 71 percent of doctors responding
reported that they do not prescribe effective medication for cancer pain
if that prescription would require them to use a special state-monitored
controlled-substances prescription form even where that medication is legal
and medically indicated for that patient. Instead, nearly three-fourths
of the doctors reported prescribing less effective drugs.
The Project on Legal Constraints on Effective Pain Relief, supported by the Kornfeld Foundation and the Mayday Fund at the American Society of Law, Medicine, and Ethics conducted an in-depth study of this problem. The initial Mayday Project was conducted at Yale- New Haven Medical Center, Montefiore Medical Center and the Center for Health Law Studies at Saint Louis University School of Law.
The Project found that the legal system places risk only on one side of the management of pain. Currently, the doctor who prescribes controlled substances for the relief of pain faces a risk of investigation, disciplinary action, criminal action and liability while the doctor who neglects to treat pain avoids those risks. For example, disciplinary boards have not yet begun to discipline doctors for the undertreatment of pain, although they have the authority to do so.
The Project recommended that medical boards reform their standards and practices. The Project also participated in the effort of the Federation of State Medical Boards to develop national regulatory guidelines on the use of controlled substances for pain relief. Where the boards have not made necessary changes in enforcement policy, the Project recommended the enactment of the Pain Relief Act. (The Pain Relief Act and articles on this issue are published in Volume 24 of the Journal of Law, Medicine & Ethics).
Concern over unrelieved pain for terminal patients has become a national public policy issue. In Washington v. Glucksberg and Vacco v.Quill, the assisted suicide cases of last summer, the Supreme Court highlighted the legal status of effective pain relief. The Court's opinion spoke strongly in favor of prescribing effective medication for pain relief at the end of life. Several justices indicated that if legal barriers to effective pain management did exist, the constitutionality of assisted suicide could be reconsidered.
The Supreme Court's statements on end-of-life care, coupled with the efforts to improve the legal climate for the use of controlled substances for chronic pain, are producing policy-level change. Several states have established state commissions to study the problem of pain management, especially at the end of life. State legislatures currently are considering proposed legislation to improve access to pain relief for the terminally ill and others.
The work of the Pain Relief Project at ASLME continues with support from the Mayday Fund. In the second phase, the Project has funded six research projects examining criminal prosecutions for the use of morphine at the end of life; managed care policies in payment for pain management; Medicare and Medicaid policies on pain management; and liability issues, among others. Results from these new projects should be available in late 1998.
Duties Dimly Seen: The Changing World of Medicine
Barry R. Furrow
Dean of Faculty
Director, Health Law Institute
Professor of Law
Widener University School
of Law
Physician
liability continues to be governed by traditional negligence principles,
with adaptations to the world of medical professionals. The familiar legal
requirements remain: that a plaintiff prove the standard of care, a breach
of that standard, a causal link to patient harm, and proof of harm. But
these very general elements of proof of a malpractice claim conceal a considerable
change in the health care environment. Physicians no longer work in a small
office without outside scrutiny; standards are no longer mostly the result
of slow change informally transmitted by opinion leaders; cost pressures
and competitiveness have given alternative medicine practitioners renewed
energy to demand a cut of the health care dollar; new scientific developments
in genetics and other areas have expanded the range of physician obligations
to gather and transmit information; and institutional tracking of physicians
has moved us toward an information-driven system.
These changes in the physician environment have long term liability implications for physicians, for better and worse. Four major developments stand out as impacting physician duties: (1) disease management and practice guidelines; (2) genetic medicine; (3) alternative medicine; and (4) performance data. Consider these in turn. Disease management and practice guidelines represent a systematic effort by specialty groups to better integrate medical practice, to come up with a standardized approach to reducing medical practice variation. They are often ignored or misunderstood by physicians, but they increasingly spell out the standard of care. Insurance carriers are now paying attention to these guidelines, and they will make concrete the standard of care for many procedures.
The proliferation of understanding about genetic risks raises a second set of legal issues. What must be disclosed to a patient, her family, and others? How long must a doctor track a patient, or be considered to have abandoned her if a genetic defect materializes?
Consider the recent case of Alexander Phang, a child who died of a genetic metabolic disease, LCHAD, that his brother Andrew had also died of five years before. The disease is less rare than PKU, which we test for. The pathologist noted this metabolic disorder and advised in the report that it was an autosomal recessive disorder and clinicians should follow up with the family. This report was never given to the parents, nor was the genetic disorder discussed with them. Is this a viable malpractice claim? Against whom?
Alternative and complementary medicine practitioners have moved to the edge of center stage recently, offering hope-inflating treatments for chronic pain and incurable diseases. Some managed care plans have even offered coverage of these therapies under pressure from subscribers. What is a physician to do when the traditional approach doesn't work and the patient wants something else--or demands it? Can she just turn the patient loose? Must she be well informed about alternative medicine and the lack of support data in many cases? What is the role of a physician in collaborating with an alternative medicine provider?
The generation of performance and other comparative data is also on the rise, driven in part by accreditation pressures of the NCQA and the JCAHO. These accreditating bodies seek to compare managed care organizations and provide stratified rankings based on performance indicators. The MCOs are also under pressure, for cost and quality reasons, to measure what their physicians do. So must physicians disclose to their patients their track records? Must they, and their organizations, systematically collect this data?
Mom, Dad, Clone: Why We Shouldn't Build Families Through Human Cloning
Lori B. Andrews
Professor of Law
Chicago-Kent College of
Law
Within
days of Ian Wilmut's announcement that he'd taken a cell from an adult
sheep and cloned an identical lamb named Dolly, various childless individuals
expressed their interest in applying the technique to humans. In New York,
members of the gay rights group Cloned Rights United Front donned buttons
advocating "Cloning: Reproduction with Compromise" and carried placards
showing a sheep as their spiritual leader, "Dolly Lama." They were protesting
a proposed bill banning human cloning.
Such individuals argue that the right to clone is part of a fundamental liberty and privacy right to making decisions about reproduction. Indeed, in a case in which I was co-counsel, Lifchez v. Hartigan, 735 F.Supp. 136 (N.D. Ill. 1990), reproductive freedom was interpreted quite broadly, to include a right to use various reproductive technologies including in vitro fertilization and embryo transfer.
But cloning is sufficiently different from coital reproduction and the types of assisted reproduction protected by the Lifchez case that constitutional protections should not apply. In even the most high-tech reproductive technologies available, a mix of genes occurs to create an individual with a genotype that has never before existed on earth. In the case of twins, two such individuals are created. Their futures are open and the distinction between themselves and their parents is acknowledged. In the case of cloning, however, the genotype has already existed. Even though it is clear that the individual will develop into a person with different traits because of different social, environmental, and generational influences, there is evidence that the fact that he or she has a genotype that already existed will affect how the resulting clone is treated by himself, his family, and social institutions.
Even if a constitutional right to clone were to be recognized, a prohibition would be justified by the physical and psychological risks. Of Wilmut's 277 attempts to clone from an adult cell, only one clone survived. In frog cloning experiments, many of the offspring were grossly deformed. And Dolly herself may fall victim to premature aging -- scientists speculate that her cells have the wear and tear of the older donor rather than the healthy newness of a young lamb.
There are also concerns about the psychological impact of cloning. In attempting to cull out from the resulting child the favored traits of the loved one or celebrity who has been cloned, the social parents will probably limit the environmental stimuli that the child is exposed to. The pianist's clone might not be allowed to play baseball or just hang out with other children. The clone of a dead child might not be exposed to food or experiences that the first child had rejected. The resulting clone may be viewed as being in a type of "genetic bondage" with improper constraints on his or her freedom.
Another problem is that the clone has lost the ability to control disclosure of intimate personal information. This may threaten the individual's self-image. Studies of people's responses to genetic testing information show that learning genetic information about oneself (whether it is positive or negative information) can harm one's self image. Moreover, an individual might be stigmatized or discriminated against based on foreknowledge of his or her genotype. If Michael Jordan were cloned and the original died young of an inheritable disease, the child could be discriminated against in insurance and employment based on that fact.
If a wealthy individual such
as Bill Gates wanted to clone himself -- perhaps giving rise to Bill Gates
5.0, 5.1, and 6.0 -- California has the only law that would stop him. Other
states should adopt similar measures to protect against the risks of human
cloning.