Why law and the life sciences

Precisely eighteen years ago, this journal began carrying a regular feature initially entitled "Law and the Life Sciences." The column's title seemed especially apt since the Center itself was then still known officially by its since-forgotten name, the Institute of Society, Ethics, and the Life Sciences. The column was devoted to the issues generated by medicine and its associated scientific disciplines and technologies as they surfaced in the courts, legislatures, and other lawmaking bodies. Some years later, in a foreword to a collection of columns and other essays by George Annas (this column's author for its first fifteen years), Daniel Callahan remembered that, at the time, his main doubt about a regular feature was whether "law and ethics" would provide enough material to be interesting "month after month."(1) In context, this observation was meant to be amusing or even ironic, not simply because Professor Annas had managed to find such fascinating things to say but because it was by then self-evident that there was no scarcity of cases, statutes, regulations, and other materials of interest to physicians, scientists, ethicists, and other readers of the Hastings Center Report. Yet it is worth remembering that this state of affairs is not inevitable nor was it always the case. Indeed, in 1973 when I first compiled a book of materials called "Law and the Life Sciences" for use in law school classes at Columbia, Pennsylvania, and Yale, most of the contents "were either from other disciplines (such as sociology and philosophy) or were cases and statutes that did not deal directly with the life sciences but from which I could draw analogies by examining the possible application of rules in contracts, criminal law, constitutional law, or administrative law."(2) Today, whole books are devoted to subsets of the same territory and are filled with cases and statutes directly on point, with no need to borrow; the wildest hypotheticals can now be replaced with actual cases and statutes. Why So Much Law in Bioethics? What accounts for this change and for the persistence of troubling issues at the intersection of law, medicine, and ethics in the pages not just of the Report but of other specialized and general interest legal and medical journals? One reason the journals and law books now bulge with bioethics cases and statutes is that the life sciences are more powerful than ever. Science has improved on Robert Sinsheimer's famous observation--that we must look not to the stars but to our genes for the herald of our fate--because scientists now have ways not just to know our genes but to engineer them. And the same is true across the spectrum of human life in the contemporary world. When death could not be prevented or even retarded--much less, a conceptus created--there was little for ethicists or lawyers to worry about. Now that physicians and scientists have technologies to control (at minimum, manage) human life from conception to death, human choice replaces fate. Such developments in the life sciences, as well as in the way health services are organized and financed, challenge existing social and professional norms; where those challenges are substantial and intractable, the people involved not infrequently turn to courts, legislatures, or executive agencies for help. Furthermore, the questions at issue are so central to human life and to the character of our society--involving, as they do, individual liberty and privacy, fair treatment, family relations, personal identity, health, and life itself--it is hardly surprising that they not only lead to contentious cases but also become lightning rods for special interest groups. In the eyes of the latter, the manner in which the law treats biomedical issues (such as fetal research, abortion, "Baby Doe," contract motherhood, genetic engineering, euthanasia, animal experimentation, and health care access and rationing) can fundamentally define our society. …