Pub Date : 2020-05-07DOI: 10.1093/he/9780198846956.003.0008
J. Herring
This chapter examines legal and ethical aspects of assisted reproduction. Topics discussed include infertility; the concept of reproductive autonomy; criticisms of assisted reproduction; regulation of assisted reproductive technologies; criticisms of the Human Fertilisation and Embryology Act 1990; gamete donation; surrogacy; cloning; and genetic enhancement and eugenics. The chapter explores the extent to which the state should regulate decisions around reproduction or whether they should be left to the decision of the individuals concerned. Some people believe that the interests of children to be born should be taken into account, although there is extensive debates over how this should be done.
{"title":"8. Reproduction","authors":"J. Herring","doi":"10.1093/he/9780198846956.003.0008","DOIUrl":"https://doi.org/10.1093/he/9780198846956.003.0008","url":null,"abstract":"This chapter examines legal and ethical aspects of assisted reproduction. Topics discussed include infertility; the concept of reproductive autonomy; criticisms of assisted reproduction; regulation of assisted reproductive technologies; criticisms of the Human Fertilisation and Embryology Act 1990; gamete donation; surrogacy; cloning; and genetic enhancement and eugenics. The chapter explores the extent to which the state should regulate decisions around reproduction or whether they should be left to the decision of the individuals concerned. Some people believe that the interests of children to be born should be taken into account, although there is extensive debates over how this should be done.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":"41 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75249962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-31DOI: 10.7590/221354020x15815920230933
A. Martani, G. Starke
Fostering the personal responsibility of patients is often considered a potential remedy for the problem of resource allocation in health care systems. In political and ethical debates, systems of rewards and punishments based on personal responsibility have proved very divisive. However, regardless of the controversies it has sparked, the implementation of personal responsibility in concrete policies has always encountered the problem of practical enforceability, i.e.how causally relevant behaviour can be tracked, allowing policies of this kind to be applied in a fine-grained, economically viable and accurate fashion. In this paper, we show how this hurdle can be seemingly overcome with the advent of digitalisation in health and delineate the potential impact of digitalisation on personal responsibility for health. We discuss how digitalisation – by datafying health and making patients transparent – promises to close the loophole of practical enforceability by allowing to trace health-related lifestyle choices of individuals as well as their exposure to avoidable risk factors. Digitalisation in health care thereby reinforces what Gerald Dworkin has called the causal aspect of personal responsibility and strengthens the implicit syllogism that – since exposure to risk factors happens at the individual level – responsibility for health should be ascribed to the individual. We conclude by addressing the limitations of this approach and suggest that there are other ways in which the potential of digitalisation can help with the allocation of resources in health care.
{"title":"Personal responsibility for health: the impact of digitalisation","authors":"A. Martani, G. Starke","doi":"10.7590/221354020x15815920230933","DOIUrl":"https://doi.org/10.7590/221354020x15815920230933","url":null,"abstract":"Fostering the personal responsibility of patients is often considered a potential remedy for the problem of resource allocation in health care systems. In political and ethical debates, systems of rewards and punishments based on personal responsibility have proved very divisive. However,\u0000 regardless of the controversies it has sparked, the implementation of personal responsibility in concrete policies has always encountered the problem of practical enforceability, i.e.how causally relevant behaviour can be tracked, allowing policies of this kind to be applied in a fine-grained,\u0000 economically viable and accurate fashion. In this paper, we show how this hurdle can be seemingly overcome with the advent of digitalisation in health and delineate the potential impact of digitalisation on personal responsibility for health. We discuss how digitalisation – by datafying\u0000 health and making patients transparent – promises to close the loophole of practical enforceability by allowing to trace health-related lifestyle choices of individuals as well as their exposure to avoidable risk factors. Digitalisation in health care thereby reinforces what Gerald Dworkin\u0000 has called the causal aspect of personal responsibility and strengthens the implicit syllogism that – since exposure to risk factors happens at the individual level – responsibility for health should be ascribed to the individual. We conclude by addressing the limitations of this\u0000 approach and suggest that there are other ways in which the potential of digitalisation can help with the allocation of resources in health care.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44461694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-31DOI: 10.7590/221354019X15678416128130
E. Cave, Nina Reinach
Article 8 of the European Convention on Human Rights supports the right to participate in decisions that affect our lives. Article 8 was a relevant factor in the Supreme Court decision of Montgomery v Lanarkshire Health Board [2015] which makes significant advances in patient-centred care. Focusing on adult patients with capacity, this article considers Article 8's influence across three routes to participatory protection: the right to choose, the duty to consult, and the right to know. We set out current limitations of the right to choose and consider the potential for Article 8 to influence the extension of a wider duty to consult and right to know. We find that there are impediments to legal development. Patient status leads to the elevation of aspects of participation that do not always comply with patient needs and expectations. We consider a reimagining of our expectations of patient rights to better acknowledge the relevance of partnership between patients and professional experts and to extend information provision beyond informed consent.
{"title":"Patient Rights to Participate in Treatment Decisions: Choice, Consultation and Knowledge","authors":"E. Cave, Nina Reinach","doi":"10.7590/221354019X15678416128130","DOIUrl":"https://doi.org/10.7590/221354019X15678416128130","url":null,"abstract":"Article 8 of the European Convention on Human Rights supports the right to participate in decisions that affect our lives. Article 8 was a relevant factor in the Supreme Court decision of Montgomery v Lanarkshire Health Board [2015] which makes significant advances in patient-centred\u0000 care. Focusing on adult patients with capacity, this article considers Article 8's influence across three routes to participatory protection: the right to choose, the duty to consult, and the right to know. We set out current limitations of the right to choose and consider the potential for\u0000 Article 8 to influence the extension of a wider duty to consult and right to know. We find that there are impediments to legal development. Patient status leads to the elevation of aspects of participation that do not always comply with patient needs and expectations. We consider a reimagining\u0000 of our expectations of patient rights to better acknowledge the relevance of partnership between patients and professional experts and to extend information provision beyond informed consent.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48318489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-31DOI: 10.7590/221354019x15678416128167
Atina Krajewska
According to different estimates, each year up to 15 million patients worldwide cross national borders to seek medical treatment. For many, reproductive travel offers the only opportunity to receive health services, which are unaffordable, unavailable, or illegal in their home countries. These patients include gay couples or single women, who are not eligible for fertility treatment, or persons who have restricted access to abortion services. The rapid expansion of cross-border reproductive services poses serious challenges. While specific international norms governing cross-border healthcare remain scarce, many non-state actors, including medical associations, assume regulatory and law-making functions. Consequently, the multiple sets of overlapping rules concerning medical liability, parenthood, or citizenship are often impenetrable. Patients often find themselves in extremely vulnerable legal positions, without sufficient remedy and appropriate legal protection. This article offers a new lens to analyse the processes that shape transnational reproductive health law (TRHL). It suggests that scholars should focus on developing a coherent conceptual framework that captures not only the traditional 'top-down' law-making processes, such as international law making and diffusion, but also the horizontal and bottom-up formation of transnational reproductive health law. It suggests that future research should examine how TRHL is slowly and latently developing a constitutional order comprising common rules and higher-ranked norms, which are formed at the national, supranational, and international level across the globe. The article focuses on abortion and assisted reproduction as the two most representative and contentious aspects of TRHL. It is different from a typical academic article in that it has a programmatic character. It focuses primarily on setting out a detailed intellectual agenda that can help reimagine the role and nature of transnational health law in the future.
{"title":"Reimagining Reproductive Rights: Studying Invisible Subjects, Principles, and Structures of Transnational Reproductive Health Law","authors":"Atina Krajewska","doi":"10.7590/221354019x15678416128167","DOIUrl":"https://doi.org/10.7590/221354019x15678416128167","url":null,"abstract":"According to different estimates, each year up to 15 million patients worldwide cross national borders to seek medical treatment. For many, reproductive travel offers the only opportunity to receive health services, which are unaffordable, unavailable, or illegal in their home countries.\u0000 These patients include gay couples or single women, who are not eligible for fertility treatment, or persons who have restricted access to abortion services. The rapid expansion of cross-border reproductive services poses serious challenges. While specific international norms governing cross-border\u0000 healthcare remain scarce, many non-state actors, including medical associations, assume regulatory and law-making functions. Consequently, the multiple sets of overlapping rules concerning medical liability, parenthood, or citizenship are often impenetrable. Patients often find themselves\u0000 in extremely vulnerable legal positions, without sufficient remedy and appropriate legal protection. This article offers a new lens to analyse the processes that shape transnational reproductive health law (TRHL). It suggests that scholars should focus on developing a coherent conceptual\u0000 framework that captures not only the traditional 'top-down' law-making processes, such as international law making and diffusion, but also the horizontal and bottom-up formation of transnational reproductive health law. It suggests that future research should examine how TRHL is slowly and\u0000 latently developing a constitutional order comprising common rules and higher-ranked norms, which are formed at the national, supranational, and international level across the globe. The article focuses on abortion and assisted reproduction as the two most representative and contentious aspects\u0000 of TRHL. It is different from a typical academic article in that it has a programmatic character. It focuses primarily on setting out a detailed intellectual agenda that can help reimagine the role and nature of transnational health law in the future.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47706640","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-31DOI: 10.7590/221354019X156784161281122213-5405
J. Montgomery
This paper considers some of the labels that have been used by scholars to define and theorise our subject area and which we are now being invited to re-imagine. These include, in roughly chronological order from my working lifetime, ‘Law, Ethics and Medicine’, ‘Medical Law and Ethics’, ‘Law and Medical Ethics’, Medicine, Patients and the Law’, ‘Medical Law’, ‘Health Care Law’, Public Health Law, Health Law. These reflect the period of academic consolidation that occurred as the subject that Margot Brazier and I have elsewhere discussed as ‘modern medical law’ took shape in the decades since it ‘emerged’ in the early 1980s. We have argued that an historical perspective demonstrates that the way lawyers ‘imagined’ the subject in the last quarter of the Twentieth Century was blinkered and neglected the long history of engagement between health and law. We showed how this neglect led to ‘myths’ taking root that constrained the development of legal scholarship and practice. This is one of the reasons why it is important to consider how ‘imaginaries’ have shaped our perspectives and understandings. We need to do this in order to take stock of how we might best position our efforts in the future. Our earlier paper deferred consideration of the question of the best name for our field of study, but I address that issue in this piece.
{"title":"What's in a Name? Labelling Effects on Analysis of the Role of Law in Health","authors":"J. Montgomery","doi":"10.7590/221354019X156784161281122213-5405","DOIUrl":"https://doi.org/10.7590/221354019X156784161281122213-5405","url":null,"abstract":"This paper considers some of the labels that have been used by scholars to define and theorise our subject area and which we are now being invited to re-imagine. These include, in roughly chronological order from my working lifetime, ‘Law, Ethics and Medicine’, ‘Medical Law and Ethics’, ‘Law and Medical Ethics’, Medicine, Patients and the Law’, ‘Medical Law’, ‘Health Care Law’, Public Health Law, Health Law. These reflect the period of academic consolidation that occurred as the subject that Margot Brazier and I have elsewhere discussed as ‘modern medical law’ took shape in the decades since it ‘emerged’ in the early 1980s. We have argued that an historical perspective demonstrates that the way lawyers ‘imagined’ the subject in the last quarter of the Twentieth Century was blinkered and neglected the long history of engagement between health and law. We showed how this neglect led to ‘myths’ taking root that constrained the development of legal scholarship and practice. This is one of the reasons why it is important to consider how ‘imaginaries’ have shaped our perspectives and understandings. We need to do this in order to take stock of how we might best position our efforts in the future. Our earlier paper deferred consideration of the question of the best name for our field of study, but I address that issue in this piece.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42930627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-31DOI: 10.7590/221354019x15678416128103
M. Brazier
{"title":"Prologue: Reflections on an Accidental Journey","authors":"M. Brazier","doi":"10.7590/221354019x15678416128103","DOIUrl":"https://doi.org/10.7590/221354019x15678416128103","url":null,"abstract":"","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41964614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-31DOI: 10.7590/221354019x15678416128158
J. McHale
{"title":"Health Law in the UK as a Subset of Human Rights Law: Idealistic Aspiration or Coherent Reality?","authors":"J. McHale","doi":"10.7590/221354019x15678416128158","DOIUrl":"https://doi.org/10.7590/221354019x15678416128158","url":null,"abstract":"","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47517251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-15DOI: 10.7590/221354019X15678416128121
S. Delacroix
Few would deny that there is an important difference between the choices that a healthcare professional is meant to empower and those at stake in a mountain expedition. The problem is that the courts’ overwhelming focus on information disclosure has obscured what mere disclosure cannot achieve: allowing patients to retain some active involvement - and hence a sense of authorship - in the decision-making processes that are likely to shape their sense of self for some time to come. Section 1 starts by explaining why such empowerment matters. It does so by considering afresh Parsons’ sociological account of illness. Hugely influential, the latter account has unfairly been interpreted as backing the ‘epistemic inequality demanding paternalism’ stance encapsulated in the Bolam Test. Section 2 outlines why Montgomery -which limits the scope of the Bolam test- may be deemed a missed opportunity, because of its continued focus on epistemic vulnerability. This narrow focus leads to a regulatory intervention - removing information disclosure from the sphere of medical discretion - that is ill-suited to the end it seeks to achieve (patient empowerment). In contrast, section 3 shows both the transformative potential inherent in the Courts’ recent delineation of a ‘duty to consult’ and the extent to which such transformation cannot stem from judicial intervention alone. Grassroots reflection - and activism across the whole of the professional community - is key to re-imagining how health practices (not just health law) may live up to the responsibility concomitant with the vulnerability described in section 1.
{"title":"At a Cross-roads? The Courts' Shifting Apprehension of the Vulnerability at Stake in the Lay-Healthcare Provider Relationship","authors":"S. Delacroix","doi":"10.7590/221354019X15678416128121","DOIUrl":"https://doi.org/10.7590/221354019X15678416128121","url":null,"abstract":"Few would deny that there is an important difference between the choices that a healthcare professional is meant to empower and those at stake in a mountain expedition. The problem is that the courts’ overwhelming focus on information disclosure has obscured what mere disclosure cannot achieve: allowing patients to retain some active involvement - and hence a sense of authorship - in the decision-making processes that are likely to shape their sense of self for some time to come. Section 1 starts by explaining why such empowerment matters. It does so by considering afresh Parsons’ sociological account of illness. Hugely influential, the latter account has unfairly been interpreted as backing the ‘epistemic inequality demanding paternalism’ stance encapsulated in the Bolam Test. Section 2 outlines why Montgomery -which limits the scope of the Bolam test- may be deemed a missed opportunity, because of its continued focus on epistemic vulnerability. This narrow focus leads to a regulatory intervention - removing information disclosure from the sphere of medical discretion - that is ill-suited to the end it seeks to achieve (patient empowerment). In contrast, section 3 shows both the transformative potential inherent in the Courts’ recent delineation of a ‘duty to consult’ and the extent to which such transformation cannot stem from judicial intervention alone. Grassroots reflection - and activism across the whole of the professional community - is key to re-imagining how health practices (not just health law) may live up to the responsibility concomitant with the vulnerability described in section 1.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48080967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-01DOI: 10.7590/221354019X15538518338607
N. Glover-Thomas
{"title":"The Vaccination Debate in the Uk: Compulsory Mandate Versus Voluntary Action in the War Against Infection","authors":"N. Glover-Thomas","doi":"10.7590/221354019X15538518338607","DOIUrl":"https://doi.org/10.7590/221354019X15538518338607","url":null,"abstract":"","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42867152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-01DOI: 10.7590/221354019X15538518338580
P. Orji
The philosophy on the procurement of body parts of the living for medical treatment purposes appears to be strengthened by altruism; or significantly rests on it. The other weak, and adjudged unethical, limb is pecuniary gains from their sales. These two either profit making or altruism are apparently in sharp contrast. However opposed commercialisation may be to altruism, they are not entirely mutually exclusive. This paper explores the advancement in the thoughts to equate living human body parts with goods in commercial transactions. It seeks to suggest a framework for dealings in human body parts for return in cash and or other benevolent grounds, yet keeping altruism within reach. It points at the Iranian system to reinforce the way forward for the global community.
{"title":"The Commodification of Body Parts of the Living – Looking Eastward to Go Westward?","authors":"P. Orji","doi":"10.7590/221354019X15538518338580","DOIUrl":"https://doi.org/10.7590/221354019X15538518338580","url":null,"abstract":"The philosophy on the procurement of body parts of the living for medical treatment purposes appears to be strengthened by altruism; or significantly rests on it. The other weak, and adjudged unethical, limb is pecuniary gains from their sales. These two either profit making or altruism are apparently in sharp contrast. However opposed commercialisation may be to altruism, they are not entirely mutually exclusive. This paper explores the advancement in the thoughts to equate living human body parts with goods in commercial transactions. It seeks to suggest a framework for dealings in human body parts for return in cash and or other benevolent grounds, yet keeping altruism within reach. It points at the Iranian system to reinforce the way forward for the global community.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45593847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：