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Rolling the bones

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Title:
Rolling the bones decisional law and the risks of treating the body as property
Creator:
Rich, Leigh Elizabeth
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Language:
English
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viii, 281 leaves : ;

Subjects

Subjects / Keywords:
Human body -- Law and legislation ( lcsh )
Human body (Philosophy) ( lcsh )
Law and biology ( lcsh )
Human body -- Law and legislation ( fast )
Human body (Philosophy) ( fast )
Law and biology ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 272-281).
General Note:
Department of Health and Behavioral Sciences
Statement of Responsibility:
by Leigh Elizabeth Rich.

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Source Institution:
|University of Colorado Denver
Holding Location:
|Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
760690920 ( OCLC )
ocn760690920
Classification:
K564.H8 R53 2004ax ( lcc )

Full Text
ROLLING THE BONES: DECISIONAL LAW AND THE
RISKS OF TREATING THE BODY AS PROPERTY
by
Leigh Elizabeth Rich
B.A., University of Colorado, 1994
M.A., University of Arizona, 1997
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Health and Behavioral Sciences
2004
rf
> ,
i f \ U |
,A


2004 by Leigh Elizabeth Rich
All rights reserved.


This dissertation is for the Doctor of Philosophy
degree by
Leigh Elizabeth Rich
has been approved by
Catherine E. Kemp
Date
Marjorie Levine-Clark


Rich, Leigh Elizabeth (Ph.D., Health and Behavioral Sciences)
Rolling the Bones: Decisional Law and the Risks of Treating the Body as Property
Thesis directed by Professor Craig Janes
ABSTRACT
Innovations in technology, particularly in the field of the new biology, alter
current ideas of what belongs to a person i.e., culturally informed body boundaries
that delimit what is and is not us and define each of us as separate and unique
individuals. Advances in the new biology call into question these seemingly rigid or
unchanging body boundaries. Recent developments in medical genetics are
particularly important, because the human genome is both unique to each individual
and not unique to each individual simultaneously. This sharing or overlap of
genetic markers blurs the boundaries between individuals, be they relatives or non-
relatives, and introduces competing interests in body tissues. As such, legal suits
concerning the new biology are often brought before the courts, and these
technological advances affect and help shape criminal and civil law; challenge the
limits of intellectual property rights; create the need for improved informed consent
procedures; shift the balance of privacy rights; and raise issues of the ownership of
and authority over stored human tissues. In turn, by ruling on such cases, judges
betray and influence social notions of body boundaries. An examination of such lines
of cases reveals so-called body boundary markers as well as the philosophical
approaches to the human body on which these rulings are based. An inductive
method examining 408 judicial opinions from U.S. cases from 1872 to the present has
been used to analyze legal notions of body boundary markers as the new biology has
emerged. Results demonstrate that unlike lay beliefs of the body, its parts and,
especially, its DNA as fixed, unique and rigidly bounded, law that occurs at the
site of the body is fluid, determining what is or is not us differentially along a
continuum and balancing the legal interests between persons and society. In
examining legal body boundaries in the twentieth century, two main themes emerge
intent and risk. Taken together and applied by the courts, risk and intent permit or
proscribe the uses of the body. Seen in this light, bodies are less antagonistically both
of value and beyond value.
This abstract accurately represents the content of the
recommend its publication.
Signed
!raig Jam


DEDICATION
For the judges, who make decisions, and all the persons whose challenging lives have
secured the rights of all. They are leaders both he who goes ahead and she who
has gone before.


NOTE ON THE TEXT
The research for this book is based predominantly on the judicial opinions authored
by U.S. courts illuminating what Oliver Wendell Holmes, Jr. (1897) deemed the path
of the law. Focusing on how the law draws, redraws, and erases boundaries that
prescribe how each of us may exercise our rights with regard to our bodies, this book
is a historical, bioethical narrative of the influence biotechnology exerts on those
rights. Technology is a wondrous thing, and its impact reaches the uppermost
echelons of life as well as the infinitesimal details. In this age of light-speed, but
impersonal, communication, judicial opinions may be captured as seemingly
fabricated blips of ones and zeros from services such as LexisNexis and downloaded
to ones personal and mobile laptop. In the process, however, the page numbers of
published opinions escape detention and cannot easily be located for use in direct
citations. That said, the names and dates of the legal cases utilized in the following
pages are cited in text without page numbers. A complete table of cases with full
citations may be found in the appendix.
Consistent with other constitutional norms, legislatures may draw lines which appear
arbitrary without the necessity of offering a justification. But courts may not. We
must justify the lines we draw.
Justices OConnor, Kennedy and Souter
Planned Parenthood v. Casey (1992)
Few rules in our time are so well established that they may not be called upon any
day to justify their existence as means adapted to an end.
Benjamin N. Cardozo
The Nature of the Judicial Process (1921)


CONTENTS
Tables......................................viii
CHAPTER
1. A JOURNALISTS HUNCH....................... 1
2. THE BOUNDED BODY.......................... 16
3. DRAWING (CELL) LINES...................... 38
4. THE DYING BODY.............................62
5. THE INCOMPETENT BODY...................... 97
6. THE PREGNANT BODY...................... 128
7. THE DISSECTED BODY....................... 150
8. THE INFORMATIONAL BODY................... 189
9. ROLLING THE BONES........................ 213
APPENDIX
A. CASES.................................... 239
B. METHODS...................................262
REFERENCES........................................ 272
vii


TABLES
Table
1.1 Hohfelds Jural Opposites........................................... 9
1.2 Hohfelds Jural Opposites with Synonyms........................... 9
1.3 Hohfelds Jural Correlatives........................................ 9
3.1 Cases Used in Research............................................ 56
3.2 Cases Used by Chapter............................................. 58
A. 1 Table of Cases................................................... 239
B. l Cases Used in Research ..........................................262
B.2 Cases Used by Chapter............................................. 262
B.3 Code List......................................................... 264
B.4 Sample Coding..................................................... 265
viii


CHAPTER ONE
A JOURNALISTS HUNCH
Like several other states this election season, Colorado became a key stopover
for President George W. Bush and Senator John F. Kerry. Whether they themselves
or their families and other campaign supporters visited the Rocky Mountain state on
the stump, Colorado and its nine electoral votes seemed up for grabs in the 2004
presidential race. Added to this, Colorado Senator Ben Nighthorse Campbell decided
not to run for a third term, leaving an open U.S. Senate seat and a race without an
incumbent. Not only was the Senate race between Colorado Attorney General Ken
Salazar and local businessman Pete Coors a contentious one, it also garnered national
attention. As did a ballot initiative, Amendment 36, which would have split
Colorados electoral votes proportionally among presidential candidates according to
the popular vote. Amendment 36 did not pass, Coors will not be Colorados next
U.S. senator, and the states nine electoral votes were not, in the end, within Kerrys
reach. Even though Salazar, a Democrat, will take over Democrat-tumed-Republican
Campbells Senate seat in 2005, both houses of Congress as well as the executive
branch remain in the leadership of the Republicans at least for the next few years.
Whether one deems these outcomes of the 2004 election as positive or negative, being
at least a skirmish in the battle for control of the federal government placed Colorado
in the spotlight that was narrowly focused on the true battleground states. With this
attention came greater or, at least, reiterated insight into the problems facing the
nation.
But what do politics have to do with bioethics? Plenty, as a matter of fact,
beginning with the undeniable truth that health care made the short list in perhaps
every 2004 campaign waged in the United States. Beaten out only by the war in Iraq
1


and jobs and the economy, Americas health care crisis often came in at number three
this election season in terms of political priorities. And right in the middle of these
campaigns, a U.S. Census Bureau report released in August further underscored the
need for new health policy in America. Covered by every major media outlet, the
Census Bureau report found that the number of Americans without health coverage
increased from 43.6 million in 2002 to nearly 45.0 million or 15.6 percent of the
population in 2003. These figures have been steadily growing since 1987, the
report states, when the uninsured rate was 12.9 percent. With the exception of a
slight dip between 1998 and 2000, the number of uninsured Americans has increased
or remain unchanged from year to year since the late 1980s. Costs have continued to
rise as well. According to the World Health Organizations World Health Report
2004, the United States in 2001 spent 13.9 percent of its gross domestic product
(GDP) and $4,887 per capita on health care expenditures compared with
Switzerland at 11.0 percent and $3,779; France at 9.6 percent and $2,109; Canada at
9.5 percent and $2,163; Japan at 8.0 percent and $2,627; and the United Kingdom at
7.6 percent and $1,835.
Thus, issues of both cost and accessibility continue to plague the U.S. health
system and there do not seem to be any easy answers in sight. Time and again during
the 2004 election, perhaps the only consistent response to the question of health care
is that it will remain a significant and looming topic for our leaders and legislators for
years to come. During a stump for President Bush at the University of Denver in
October, Nancy Brinker, former ambassador to Hungary and the founder of the Susan
G. Komen Breast Cancer Foundation, may have summed up this sentiment best:
Health care is going to be the subject... in the next decade. (And health care issues)
will plague generations to come if we dont fix them now, she told a small crowd
and fellow speakers Liz Cheney, Barbara and Jenna Bush, and Colorado Lieutenant
Governor Jane Norton.
2


And any health care policy, particularly as biotechnology continues to be
incorporated into medicine, will necessarily affect the individuals economic, moral,
and legal relationships with his or her body.
Health policy, however, while perhaps influenced by philosophers, physicians,
medical historians, economists, social scientists, lawyers and the like, is under the
purview of legislators. And legislators fundamentally are ordinary citizens chosen by
voters to represent and carry out their interests via the vehicle of government.
Anyone who denies this common denominator among our senators and
representatives need only attend the freshmen orientations held throughout our
country following an election to see just how ordinary our legislators are
neophytes who must learn the rules of the house and the operating procedures on the
floor; the process by which a bill becomes a law; the balance of and battles for power
among the three branches of government, etc. Any academic insight into Americas
health care system, then, must necessarily be accessible to this broad mix of
legislators who have plenary power to enact laws and who hold the purse strings that
fund the mechanisms of society-at-large. Similarly, bioethics committees and
foundation boards almost always include members of the lay public and, if any piece
of work is to find its way into agendas and guidelines that shape American policy, it
must be accessible to all.
As a reader of this text, what you will find in the pages following this
foreword is an attempt to bring together perspectives from various disciplines that
affect how we as a multifaceted culture view the human body and, thus, power and
authority within our health care system in an accessible and, I hope, enjoyable
approach. Bitter medicine never goes down easily nor is it always more efficacious
than the more agreeable kind. While this style might not sit well with academicians
or be deemed appropriate for a thesis or dissertation, it is a tactic I have purposefully
chosen for at least two reasons. First, I am neither a doctor, a lawyer, a historian, a
philosopher, nor a policymaker. And even though I do have formal degrees in
3


cultural and medical anthropology, I by no means fit the traditional description of
anthropologist. I was drawn to my doctoral program, known by the cryptic title
Health and Behavioral Sciences, because it is one of the few interdisciplinary
public health programs and because it allowed me, ever the jack of all trades but
master of none, to attempt to bridge gaps within our pedagogical educational system
that forces students into ever narrower niches. Despite the guise of the liberal
education, Americas higher educational and postgraduate programs often do not
allow students with a wide variety of interests to transgress and even fuse disciplinary
boundaries as frequently as some of us would like. The doctoral program in Health
and Behavioral Sciences is perhaps a new species that gives hope to students like me.
Unfortunately, the interdisciplinary approach, at least in this incipient stage, comes at
a price. While I was fortunate enough to have experts from the fields of
anthropology, history, philosophy, and the law sit on my dissertation committee, there
was no way for me despite my dozen of years spent in college to reach their
level of expertise in any one of these disciplines, let alone all. Thus, this manuscript,
which is the result of the graduation requirements for a degree, perhaps cannot stand
on its own as an anthropological treatise, a history dissertation, a philosophical
volume, or a legal tome. Rather, it is, as one of my professors once said of a
colleagues thesis, neither fish nor fowl. But even though what I offer you in the
subsequent pages is neither fish nor fowl does not necessarily mean it is not useful.
In terms of each of the disciplines I bring together in these pages, Rolling the Bones is
a view from the outside, like an anthropologists perspective on a foreign culture. My
many years as a journalist a profession in which jacks-of-all-trades rely on
carefully selected sources who have expertise in the appropriate areas influences
the approach I take in these pages as much as my academic training. Like the
anthropologist, however, I too bring cultural biases into my work, and though I am an
outsider to the disciplines I attempt to fuse here, I am a part and parcel of American
society. Thus, this work is subjective, like any research or experiment, and I try not
4


to obscure my biases beneath numbers nor do I suggest my analysis is the only or
final method of considering the legal conclusions reached by our courts over the last
century.
I blame the second reason for my less-than-academic approach in these pages
on what I have perhaps come to deem the best $14.951 ever spent. Editors Eleanor
Harmen, Ian Montagnes, Siobhan McMenemy, and Chris Bucci influenced me more
with their slim volume, The Thesis and the Book: A Guide for First-time Academic
Authors (2003), than anyone else. From their collection of essays, I will share only a
few bits of the crucial information this book a necessity for graduate students and
committee chairs alike furnishes. In Chapter Three, Robert Plant Armstrong notes
the remarkable extent to which the serious book of non-fiction resembles the novel
and persuasively claims that a book is a verbal creation giving a perspective on
human experience and the world. It is also a contribution to the sum of values, views,
and attitudes that comprise the nature of human existence in a given era, and shape its
view of the cosmos (2003:27). In Chapter Four, William C. Dowling states that the
genuine book is an elaboration of a single significant idea, and the warmed-over
dissertation isnt (2003:35). Dowling even cites Armstrong at the end of his essay,
reiterating the assertion that there is every reason why, in this day of Ph.D.
overproduction, the requirement to write a dissertation should be dropped and the
requirement to write a book substituted (2003:38). Thus, what you wont find in
abundance here is, as former Ambassador to Japan Edwin O. Reischauer once put it,
the slow, pedantic crawl of scholarly prose.
What I hope you will find is a foundation from which to rethink the human
body and its parts necessarily an American body, since this book is based on U.S.
judicial opinions and perhaps even the American health care system itself. While
no one book can thoroughly address each of the academic disciplines that are melded
together in these pages, I hope I can offer any number of jumping off points. I use
5


in-text citations throughout this book, so that, at any point, you may locate my
sources and refer to the experts in their respective fields.
All of that said, a few notes on the theoretical approach used in this book must
be elucidated before there can be any examination of actual judicial opinions
involving bodies or body parts. While I explain at some length the title of this work,
Rolling the Bones, throughout the book, the subtitle seems a bit more elusive
particularly the part about treating the body as property. This will perhaps not
come as such a surprise to those readers who know something about the legal concept
of property, for it, like the body, can be quite indefinable. In fact, the looseness and
ambiguity with which lawyers, judges and society as a whole have used legal terms
and concepts like property or right became a passion of legal scholar and Yale
and Stanford law school professor Wesley Newcomb Hohfeld early last century. In
two Yale Law Journal articles, one from 1913 and the second from 1917, Hohfeld
developed a framework for differentiating these common legal relations and reducing
them to the lowest common denominators of the law (2002:64). Before diving into
the details of that framework, however, Hohfelds commentary on the legal term
property in his 1913 essay may help explain my use of the concept in relation to the
human body. Hohfeld explicitly points out that with lawyers and with laymen this
term has no definite or stable connotation (2002:28). At times, it refers to the actual
physical object to which various legal rights, privileges, etc., relate; then again
with far greater discrimination and accuracy the word is used to denote the legal
interest (or aggregate of legal relations) appertaining to such physical object
(2002:28). He then cites an explanation from Justice Jeremiah Smiths judicial
opinion in a railroad case: In a strict legal sense, land is not property, but the
subject of property (2002:28-29). Property, Justice Smith continues, in its legal
signification means only the rights of the owner in relation to it. It denotes a right
over a determinate thing. Property is the right of any person to possess, use, enjoy,
and dispose of a thing (cited in Hohfeld 2002:29). Moreover, the right of user
6


necessarily includes the right and power of excluding others from using (cited in
Hohfeld 2002:29).
When viewed in this light, the body though a sacred entity that we rarely
wish to reduce to the level of land or a physical object more noticeably
becomes the subject of something akin to property. In the judicial opinions presented
in this book, however, there is only the very rare occasion in which you will find
judges and our judicial system referring to the human body or its parts as property
proper. But we do have a complex web of legal rights, privileges, etc., in relation to
it. With apologies to Professor Hohfeld and the many members of our judiciary, past
and present, I have chosen to keep the term property however loosely used or
misused in the subtitle as a reminder of these legal bodily interests and relations
we have with ourselves, with each other, and with the state.
It is also a reminder that bodies continue to be, perhaps increasingly, the
subject of legal cases, often because of advances in biotechnology. Today, there
never seems to be a paucity of legal conflicts concerning bodies. In 2004 alone, we
can point to a six-to-one Supreme Court of California decision in February ordering a
Roman Catholic charity to include birth-control coverage in its employee health
plans; the murder charge Utah brought in March against Melissa Ann Rowland
because she delayed in consenting to a cesarean section, which authorities argued
resulted in the death of one of her twins; the September decision of the Supreme
Court of Florida deeming Terris Law a last-minute effort by the Florida
Legislature giving Governor Jeb Bush the authority to stay the removal of life support
from a persistent vegetative patient unconstitutional and a violation of the
separation of powers; and a de novo incident in October in which a Colorado surgeon
refused to perform a kidney transplant because the recipient had located the donor via
a for-profit Web site that charges fees for its matching services.
From these examples alone, its easy to see that bodies are both useful and
valuable. So too are commodities. In Chapter Nine of this book, I introduce some of
7


Karl Marxs work from his Das Kapital on the subject of commodities. While bodies
and body parts are not necessarily commodities per se, they do share certain traits
that, I believe, shed light on how bodies can be both of value and beyond value
simultaneously. So, my intentional use of the phrase treating the body as property
is an attempt to reinforce the undeniable fact that, while greater than the sum of its
parts, the modem body remains useful and valuable.
Lastly, on the subject of property, we also must remember that the American
health care system is an industry perhaps not quite like the automobile or
electronics industries, but an industry nonetheless. And plans of the second Bush
administration, such as the promotion of health savings accounts and other consumer-
controlled ideas, may further drive health care into the arms of the marketplace.
While this may not be a viable remedy for solving our health care crisis, as former
Massachusetts Governor Michael Dukakis told the Colorado Coalition for the
Medically Underserved at a lecture on the uninsured in November, it is yet another
way in which the American body is, if I may use the term loosely, commodified.
So, then with this complex web of legal relationships in which the body is
entangled how do we decide who has decision-making authority over our bodies
and when? I attempt to answer this very question in the remainder of the text by
examining judicial opinions from actual cases involving bodies and body parts.
Whether as a lay or legal reader of such cases, Hohfelds framework concerning legal
relations becomes very helpful when trying to sort out a courts reasoning for its
decision and, thus, the path of the law. Because courts must weigh and balance
competing interests whether between individual parties or individuals and the state
Hohfelds eight lowest common legal denominators illuminate how one partys
legal advantages are another partys legal disadvantages. In his 1913 article, Hohfeld
first presented these as jural opposites:
8


Table 1.1 Hohfelds Jural Opposites
Legal Advantages Right Privilege Power Immunity
Legal Disadvantages No-Right Duty Disability Liability
Arranged this way, each legal term right, privilege, power, immunity has an
opposite, with no-right being a theoretical creation of Hohfeld since no existing
legal term succinctly embraces the opposite concept of a right. Hohfeld also
discussed what each of these terms means in a strict sense, using various cases as
examples and offering his readers synonyms for the sake of clarification. Adding
these to Hohfelds original framework of jural opposites, though he did not formally
do so, helps to further explain how these legal concepts are related:
Table 1.2 Hohfelds Jural Opposites with Synonyms
Legal Advantages Right Claim Privilege Freedom Liberty Power Ability Immunity Exemption
Legal Disadvantages No-Right Duty Disability No-Power Liability Responsibility Subjection Obligation
The power of Hohfelds framework, however, stems from how he next presented
these eight terms in his 1913 article as jural correlatives:
Table 1.3 Hohfelds Jural Correlatives
Legal Advantages Right Privilege Power Immunity
Legal Disadvantages Duty No-Right Liability Disability
To make sense of this arrangement, it is perhaps best to use an example and one
which, in varying forms, you will repeatedly come across throughout the rest of this
book.
One right we as Americans enjoy is the right to be let alone or a right to
bodily integrity. This right, like other rights, however, necessarily places a duty on
9


others to not interfere with the exercise of the right. For instance, with my right to be
let alone, the state and others have a duty, with certain exceptions, not to transgress
my bodily boundaries. I, however, have the legal freedom or liberty i.e., the
privilege to do so. I can, for example, become a bone marrow or a kidney donor,
but the state and other individuals have no-right to compel me. Thus, I have the
power to consent to or refuse medical treatment, surgery, or other bodily
transgressions, while the state and others are subjected to my choice and have a
liability or responsibility to respect it. In certain circumstances, however, the state or
an individual might be exempt or immune, as in the case of a reasonable search and
seizure or an act of self-defense. If I am stopped for speeding and the police officer
smells alcohol on my breath, for example, I have no-power or a disability to decline
a Breathalyzer test.
Though it never quite became universally required reading in law school or
regular practice within the law, the strength of Hohfelds framework is that it reduces
these common legal terms to singular concepts or definitions and allows for a greater
understanding of why the law balances legal advantages and disadvantages between
parties as it does. Hohfeld explained it this way: Ten fractions (1/3,2/5, etc.) may,
superficially, seem so different from one another as to defy comparison. If, however,
they are expressed in terms of their lowest common denominators (5/15,6/15, etc.),
comparison becomes easy, and fundamental similarity may be discovered (2002:64).
While I have not fully described Hohfelds brilliant analysis here, partly due to space
and partly to my own nonprofessional understanding of the law, keep these legal
relations in mind as you read how various courts have weighed and balanced
competing legal interests. I have made every attempt to adhere to Hohfelds
definitions of these terms in what follows, though this hasnt been entirely possible in
all instances. The reason for this is twofold. First, because Hohfelds call for
precision has not thoroughly been heeded, courts, judges, lawyers, and society still
use these terms loosely, even injudicial opinions. Since I employed an inductive
10


method of analysis when examining these cases, I am partially bound to the language
used in my data. And second, I, too, didnt come across Hohfelds work until after
the bulk of this text was written. Thus, I chose to clean up and edit my use of legal
concepts instead of rereading all of the cases, repeating my analyses, and rewriting
the book. For example, using the illustration above, it would be a misnomer to say
that an individual has the right to donate an organ or the right to refuse medical
treatment when, in fact, the individual has the privilege to donate an organ and the
power to refuse medical treatment because he or she has the right to be let alone.
While I know it would be exceedingly interesting to reexamine the bioethics
cases I present in this text using Hohfelds framework as a guide, I believe the
conclusions I have reached remain valid even without doing so. Before I provide
some examples to support this claim, however, I must take a few steps back and
explain to you, the reader, how I embarked on this journey in the first place. This
entire research project began with the 1990 Supreme Court of California case, Moore
v. Regents of the University of California. I will refrain from describing the details of
this case here, as I spend many of the coming pages doing so. But this case caught
my attention many years ago for several reasons the main one being that leukemia
patient John Moore sued his physician and other defendants for conversion or theft
of his bodily tissues, some of which were used to create a patented cell line (named
Mo, after the source). On this count, the California court ruled against Moore.
In reading about Moores legal plight, I began to wonder about the legal
advantages and disadvantages we have in our bodies and their parts. Do our bodies
belong to us? Do our parts belong to us, even after theyve been physically removed?
And in reading and rereading and rereading the actual Moore judicial opinion, I had a
hunch (perhaps similar to Joseph Hutchesons [1929] judicial hunch) that, in our ever
pragmatic American society, we tend to answer these questions based on the body
parts ultimate use. For example, it seems the Moore judges based their decision
that John Moore had no claim to the patented Mo cell line because the defendants
11


mixed their professional labor with it, thus converting the valuable but fallow tissue
into a new and useful tool for medical researchers and, potentially, society. After all,
Moore was not using this tissue and to deem what occurred conversion might chill
the mechanisms of medical research and, thus, the search for treatments and cures
that benefit all.
So, did the ends justify the means?
I am simplifying die well thought out and considered judicial opinion from the
Moore case here because I examine it in depth in Chapter Seven, so by no means is
this boiled-down version the extent or a just summary of a very complicated case. In
fact, one of the other reasons why the Moore opinion has consumed much of my
thought over these past few years is because, to this day, I am still swayed by the
majority opinion as well as the concurring and dissenting opinions offered in the legal
text. Moore is the perfect example of why there are rarely easy answers to such
bioethical questions that seem, at first glance, rather simple the first reaction of
many when they hear of this case is of course my body belongs to me! If I were to
ever teach a bioethics course, I would spend much time with my students examining
and reexamining the Moore case and its opinion. The justices, though I know they
were just doing their job, deserve respect and commendation for not shying away
from this thorny legal predicament brought about by advances in biotechnology.
But do the cases I examined over the course of this project support this initial
hunch that we, as a society, justify our legal relations to our bodies in terms of
usefulness? In a certain sense, they do. But one reason to approach a question such
as How do we decide who has decision-making authority over our bodies and
when? from an inductive standpoint is to let the data speak for itself.
And in doing so, two main themes emerged regardless of the type of
bioethical case involved: risk and intent.
These seem to comprise the two sides of an ultimate use coin.
12


And as courts weigh and balance the competing legal interests concerning a
body or body part, they invariably engage in a conversation, whether conscious or
acknowledged, about the risks and intentions involved in using bodies.
In fact, risk and intent seem to be similar to Hohfelds lowest common legal
denominators.
Take, for example, the external pressures that advances in biotechnology place
on our body boundaries, whether it involves life support, transplantation, artificial
reproduction, or genetic fingerprinting. These external constraints help to shape what
we can do with and to our bodies i.e., they influence our body boundaries.
Changes in biotechnology, then, logically result in changes in our body boundaries.
But if biotechnology were the only force pressing on body boundaries, by now wed
likely be selling more body parts on the open market than we currently do.
So something else must be holding body boundaries steady. These are the
philosophical principles inherent in our law that give our society its moral shape.1
And while both technology and principles can change, therefore shifting the bodys
boundaries, technology is the hare to the tortoise-paced principles. Thus, sketching
out a diagram of where body boundaries are drawn in the law adjusting for these
rapid advances in biotechnology reveals our societys guiding principles.
As stated above, the two main philosophical concepts that emerged from
examining a centurys worth of body-related cases are risk and intent. This is not to
say that other philosophical principles dont abound in 20th-century legal cases. Other
principles, of course, are at play such as autonomy, personhood, privacy, duty,
beneficence, utility, justice, equity, etc. But the methods courts use for deducing
which of these principles are to be applied in cases concerning bodies and body parts
and when seems to be repeatedly reducible along the lines of some combination of
risk and intent.
1 These philosophical principles come from society but are brought to the law by our constitutions and
our legislatures.
13


Perhaps risk and intent, then, are the lowest common philosophical
denominators within decisional law (and, though not examined here, also within
enacted law).
Combining my conclusions in this text with Hohfelds framework, it appears
that risk and intent are key concepts in our philosophical justifications for why we
have the rights, privileges, powers, and immunities, etc., that we do and not just in
relation to the body.
For example, why can nonprofit organizations apply for tax-exempt status?
Though the state has a right to collect taxes for its survival and the common good as
well as the power to subject individuals and groups to pay taxes, nonprofits have the
advantage of applying for immunity. Though there is a risk to the state because tax
exemption decreases working funds, this has been weighed (by lawmakers) against
the risk that a tax burden would prevent a nonprofit from providing needed services
that might not be offered by the state. This also creates a risk of placing for-profit
businesses at a disadvantage, and such tax-exempt status for nonprofits may seem
unfair. But rather than individual wealth and material gain, the intention of a
nonprofit is, similar to the state, to help those in need in a variety of ways.
Similarly, why can the state prohibit abortions after viability? Before
viability, a pregnant woman has the right to be let alone, and the state cannot
interfere. After viability, however, the state can compel the woman to carry the fetus
to term. As you will see in many cases examined in this book, the judicial system
recognizes four duties (though not in the Hohfeld sense) or, rather, rights of the
state to preserve fife, prevent suicide, protect innocent third parties, and preserve the
integrity of the medical community. Thus, because terminating a pregnancy after
viability increases risks to the mothers health and runs the risk of ending the life of
what may be a person, the state can enforce its legal advantages according to these
four rights that are, ultimately, intentions to protect society as a whole and those who
14


cannot protect themselves. At viability, there is also a greater chance (i.e., a
decreased risk) that the fetus can survive outside of the womb.
Five of the remaining chapters in this book engage in a similar, though more
in-depth analysis of legal questions based on actual cases and, with each, I attempt to
illustrate how risk and intent shape the moral and legal principles that demarcate the
bodys boundaries and, thus, our legal advantages and disadvantages.
It is these philosophical denominators of risk and intent that allow for
flexibility in how the law applies our societys values to questions about legal
interests in bodies. How and when we are able to spend that ultimate use coin with
regard to our bodies and their parts depends on the risks and intentions involved in
our actions.
As biotechnology continues to advance, the risks and intentions of using
bodies transform as well. What was acceptable in one instance or one era may not be
in another.
And, conversely, what wasnt acceptable yesterday may be today.
L.E. Rich
November 21, 2004
15


CHAPTER TWO
THEBOUNDED BODY
It is early morning in the New Guinea highlands and a young woman begins
her day. Before she tends to her garden and the sweet potatoes, yams, and sugarcane
that she has planted in her native grasslands, she brushes her hair and adorns it with
feathers and flowers. She carefully removes the loose strands of hair from her comb
and wraps them around her toe, securely tying them in a knot. She will deal with the
strands later, when she has a spare moment from her workday when she is alone.
Then, she will find a place, dig a small hole, and bury these bits of her body. She
knows that if she is not careful, if someone might see her, she may become a victim of
kuru, like her mother, and begin to tremble and shiver and slowly waste away. When
the uncontrollable laughter and dementia set in, she will know that death is not far
off. And there will be little that anyone can do. Frozen momentarily by such
fearsome thoughts, the Fore mother continues in her morning ritual and begins her
daily chores, though with a silent reminder to bury her hair to make certain it doesnt
fall into the hands of a sorcerer. If it does, he could use the hair to make her sick,
combining it with crumbled stones and leaves and binding the collection with vines.
Next, as he beats the bundle with a stick, would come his incantation: I break the
bones ofyour legs, I break the bones ofyour feet, I break the bones ofyour arms, I
break the bones of your hands and finally I make you die (Lindenbaum 1979:65).
When I originally heard this story as a first-year graduate student in
anthropology in the mid-1990s, it struck me as revelatory. Perhaps like other,
average Americans, I had never really thought of my body as more than object,
especially when parts of that object waste, as I deemed them were physically
separated from my larger whole. I was, unbeknownst to me, greater than the sum of
my parts, where loss of certain parts such as hair didnt affect the greater whole. (I
likely would not have felt so similarly, however, if a finger was accidentally severed
or I lost a breast to cancer.) Not that the Fore woman from New Guinea wasnt also
more than an aggregate of bits and pieces. She simply did not define her loose
16


strands of hair according to my cosmology. This was not waste at all. In fact, in
contrast to me, the separation of these parts from her larger whole placed that larger
whole at risk.
Ten years later, with the mapping of the human genome ahead of schedule and
industry leaders applauding the dawn of genomic medicine, my epiphany seems naive
and hardly surprising at all. Of course that hair is still connected to you. Certainly, if
in the wrong hands, even one strand places you at risk. But this perspective in
American society about such connected relationships with our bodies and body parts
is new. Forty years ago, for example, scientific researchers routinely used tissues
stored in pathology labs such as organs from surgeries or placentas from births
with fleeting attention paid to informed consent or institutional oversight. Sixty years
ago, researchers conducted experiments on the institutionalized and incarcerated as
well as the conscientious objectors of the Second World War. Eighty years ago, those
deemed ill fit to reproduce were sterilized.
Todays bodies are different. They are different because injustices have
occurred, philosophies have changed, technologies have advanced, and markets have
grown increasingly more profitable. What was once estimated to be worth about
$1.27 in parts (Gottlieb 1998) ranges today anywhere between $14,000 and $34,000
(Shapiro et al. 2003). Concomitantly, utilizing those parts has grown more cost-
efficient. According to the National Human Genome Research Institute (2003), the
Human Genome Projects cost of sequencing a gene has decreased since 1990 from
$10 per nucleotide base to less than nine cents. Due to the leaps and bounds made in
microbiology, physics, and chemistry, we have access to ever smaller particles of life,
and thanks to the silicon revolution, we can process and store vast amounts of data
seemingly effortlessly. The promise of genomic medicine could not be a reality
without the invention of the microchip, recombinant DNA techniques, or the
polymerase chain reaction (PCR). Thus, technology has done its part in shaping our
modem body and increasing its value. Technology does not exist in a vacuum,
17


however; it, too, is fashioned by the socio-historical contexts in which it emerges as
well as the needs and desires of the modem body itself. To understand the modem
body in all of its variations (e.g., gender, class, ethnicity) and layers (e.g., the
biological, the social, the body politic) requires knowledge of history, philosophy,
science, and law.
Perhaps no other era has been witness to the greatest array of technological
advancement than the 20th century. Whether in terms of transportation,
communication, weaponry, space exploration, or medicine, science and technology in
the 20 century have crossed borders and broken boundaries with increasing rapidity
and precision. These accomplishments, of course, could not have emerged without
the influence of changing philosophical perspectives in previous centuries that
culminated in the Enlightenment and the scientific revolution. Thus, the modem
body is rooted in history, fashioned like any other body by the events and
circumstances that have come before.
Though what philosophers and social scientists deem the modem body
didnt materialize until the mid-18th century, changes were afoot as far back as the
12th and 13th centuries with the rise of surgery and the emergence of surgical texts.
Anatomy became more of a focus in medical school curricula between the 13 and
15th centuries, with a growing emphasis on the functions of organs and the treatments
of diseases. So central did the structure of the body become to art and medicine,
Leonardo da Vinci conducted his own dissections and physician Gentile da Foligno
purported that anatomy is to medicine what the alphabet is to reading (Siraisi 1990).
Watershed developments transpired in English medicine by the 17th century, as
William Harvey described the circulation of blood and clinician Thomas Syndenham
called for more empirical observation in the discipline (Beier 1997). The time in
England between 1550 and 1750 witnessed some of the most radical change in
medical theory because of new perspectives in the physical sciences (Wear
1992:120). Though the scientific revolution had few direct effects on medicine at the
18


time and didnt necessarily offer improvements in treatment or prolongation of life, it
laid the theoretical groundwork for advances to come. So too did the Quacks
Charter of 1543 and the mission of English physicians and surgeons, who set out to
discredit non-licensed healers (Beier 1997). At the time, English medicine with a
mix of licensed physicians, surgeons, and midwives; apothecaries organized in guilds;
and a variety of non-licensed practitioners who flourished in the markets increasing
demand for health care was anything but professionalized and no one medical
theory enjoyed the limelight of authority. The situation was similar across the ocean
in the colonies. Zabdiel Boylston, a successful practitioner in Boston and champion
of smallpox vaccination, for example, apprenticed under his surgeon father and
lacked formal training (Carrell 2003). Before the 1750s, patients were more akin to
clients and medical knowledge was part and parcel of popular culture (Fissell 1991)
a patchwork quilt, as it were, where if one comer didnt keep you warm, you
might find solace under another.
But this began to change as ideas about biological mechanism and disease
archetype slowly cracked the long-held foundation of Hippocratic, humoral
medicine that both professionals and quasi-professionals practiced. Evidence of this
transformation is reflected in the case history that narrative constructed by
practitioners describing their patients infirmities. Whereas the Hippocratic case
history in the fourth and fifth centuries emphasized the individual and atypical aspects
of an illness episode, physician Sir John Floyers case history in the early 1700s told
the illness story in terms of a broader classification disease type (Epstein 1995).
A new perspective also emerged with regard to gender. While Greek
physicians such as Aristotle, Hippocrates, and Galen viewed sexual differences in
terms of humors and women merely as men turned inside out, practitioners by the
late-18th century advocated the idea that men and women are opposites. Historian
Thomas Laqueur (1990) has documented this change from a one-sex to a two-sex
model, noting that human sexual nature as radically dimorphic is a relatively
19


modem idea that emerged from the scientific revolution. Hindsight also has shown
that scientists throughout Europe, they searched for and described these sexual
differences, imbued cultural notions of gender and gender roles within the body itself,
most notably in illustrations of the female skeleton between 1730 and 1790. Even
as late as 1829, John Barclays drawings of the male and female skeleton depicted the
latter as closer in resemblance to the skeleton of a child, reinforcing the cultural idea
that women were like children in maturity and intellect (Schiebinger 2000). Founder
of modem anatomy Andreas Vesalius was one of the first to depict a human
skeleton, believing instead that sexual differences were not rooted in the humors or
the skeleton but were skin deep in the outlines of the body and the reproductive
organs. By the end of the 18 th century, then, gender was thought to pervade all parts
of a human body, including bones, hair, mouth, eyes, voices, blood vessels, sweat,
and brains (Schiebinger 2000:31). This thinking has been earned into the 20
century, particularly with the discovery of hormones and the sex chromosomes (see
Oudshoom 2000).
With an emphasis on gender disparities, a push for professionalization as
licensed practitioners realized they lacked control over the production and
consumption of medical knowledge, and the emergence of the modem hospital
system within which doctors could commandeer that authority (Fissell 1991), it is no
wonder the modem body was forged in the second half of the 18th century. This new
body, increasingly under the scrutiny of what postmodern philosopher Michel
Foucault (1994) has termed the medical gaze, is internalized, individuated, and
closed off by boundaries that set it apart from the external. It is a disciplined body,
very unlike its fluid humoral predecessor (Duden 1991). And, particularly in the
context of the 20th century, it is an objectified body.
As medical theories about death and disease after 1750 increasingly
narrowed their focus to physiology and specific parts of the body, the modem body
became an even more important resource of information for those with the expertise
20


to cull it. Historian Ian A. Burney (2000), for example, has demonstrated how the
coroners inquest in 19th-century England evolved from a public, community practice
into a private, professional one. Once held in local taverns before a dozen or more
men who could view the body of the deceased as well as question witnesses, these
trials to determine the causes of sudden death were eventually turned over to medical
experts. The General Register Office, especially after passage of the Births, Deaths,
and Marriages Registration Act of 1836, sought to reduce inconsistencies in and
remove lay opinions from death reports. By 1926 and the Coroners Amendment Act,
all inquests were conducted by registered medical practitioners behind closed doors.
The removal of the body from local, lay inquisitions was, in part, a consequence of
the widening gap between medical professionals and amateurs as well as the
escalating illegibility of the modem body.
Similar trends toward professionalization were happening in the United States
in the late 1800s as well, when states began rewriting many of the licensing laws that
had been repealed in the 1830s. The 1846 and 1877 establishments of the American
Medical Association and the American Medical College Association, the passage of
the 1862 Morrill Act,2 3 and the implementation of the German medical educational
system by Baltimore businessman Johns Hopkins were all forces that helped create
order in this age of medical anarchy. As historian Robert P. Hudson (1978) has
explained, changes in American medicine were well in place before the publication of
Abraham Flexners Bulletin No. 4 in 1910. By the mid-1890s, almost every state had
licensing laws on its books, though few medical schools required premedical college
education. At this same time, laboratory medicine and laboratory training in medical
schools were on the rise. In the early 1900s, the American Medical Association
2 The American College Medical Association was reorganized in 1890 and renamed the Association of
American Medical Colleges.
3 The Morrill Act initiated the land grant university movement, indirectly gave rise to ... the public
high school, and prioritized the education of the masses (Hudson 1978:110).
21


successfully closed 26 schools which failed inspection by its Council on Medical
Education, and by 1910, most medical schools offered four-year programs that were
under pressure by the American Medical Association, the Association of American
Medical Colleges, and state licensing boards to adhere to standards. Hospitals were
proliferating as well, allowing medical school graduates to informally take part in
hospital internships or other in-house training. Flexners report a blueprint of the
new structure which was to rise from the ashes (Hudson 1978:111) was
ultimately a codification of the changes in American medical education that had been
evolving since the Civil War.4
Transformations also were stirring in the second half of the 19th century in the
fife sciences and the law. Charles Darwin published his On the Origin of Species in
1859; the U.S. Patent Office awarded Louis Pasteur a patent on yeast, free from
organic germs of disease, as an article of manufacture in 1873 (Diamond v.
Chakrabarty 1980); Oskar Hertwig demonstrated that reproduction is the union of
both sperm and egg using microscopic staining in 1876 (Epstein 1995); Freidrich
Loeffler wrote the first history of bacteriology in 1887; advances in anesthesia
expanded the field of surgery by the 1890s; gynecologists had discovered the link
between the ovaries and their chemical secretions in 1896; Ernest H. Starling first
used the term hormone to describe these chemical messengers in 1905 (Oudshoom
2000); and Gregor Mendels pea experiments were rediscovered in 1905, giving birth
to the age of Mendelian genetics. In the law, the Thirteenth Amendment ended
slavery in 1865; the Supreme Court of Rhode Island recognized quasi-property rights
in the body of a decedent in Pierce v. Proprietors of Swan Point Cemetery in 1872;
legal formalist and Harvard Law School dean Christopher Columbus Langdell
revamped American legal education beginning in the 1890s, insisting that case
4 For a thorough review of the history of American medicine, see Paul Starr (1982), The Social
Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast
Industry, Cambridge: Basic Books.
22


decisions can be deduced from clear rules of law; and the Supreme Court of the
United States upheld the right of every individual to the possession and control of
his own person, free from all restraint or interference of others in Union Pacific
Railway Company v. Botsford in 1891 as well as the right to purchase or to sell
labor as part of the liberty protected by the Fourteenth Amendment in Lochner v.
New York in 1905.
Changes occurring in both medical and legal education before the turn of the
century cemented the shift in these disciplines from the particularity of individual
cases to the generality of archetypal cases. Cell biologist and philosopher Lenny
Moss (2003) has written of this transformation that occurred by the early 20th century,
which he calls the phylogenetic turn. Though influenced by Darwin and Mendel,
Moss says, modem biology and genetics in actuality began when the theater of
adaptation changed from that of individual life histories, that is, ontogenies, to that of
populations over multiple generations, that is, phytogenies (2003:4, emphasis
deleted). Similarly, Langdell introduced the case method of legal study in which
overarching principles of law are understood via the inductive examination of actual
legal situations in which they occur. A more formalized case method also emerged in
medicine at this same time, with the medical case history emphasizing a patients
symptoms as filtered by the professional seeking objective manifestations or signs
of a disease and the laboratory findings aiding in the diagnosis (Epstein 1995).
This new modus operandi, as well as historical events such as Alexander
Flemings discovery of penicillin in 1928, influenced the explosion of medical
research that would emerge in the 1920s and 1930s and escalate during World War II.
And many patients were willing subjects for researchers and physicians doggedly
pursuing patents. In the decades that were witness to the passage of the Nineteenth
Amendment in 1920 giving women the vote; the Supreme Courts landmark
compulsory sterilization decision Buck v. Bell (1927) in the heyday of the Eugenics
Movement; the discovery of female and male hormones present in bodies of the
23


opposing sex in the late 1920s (Oudshoom 2000); and the development of electron
microscopy and the creation of the National Institutes of Health in the 1930s. As
medical historian David J. Rothman has described, patients were ready to gamble,
even if they understood neither the odds nor the nature of the game (1991:25).
Medical ethics, moreover, were under the control of the physicians themselves, and
the American Medical Association successfully resisted intrusions from the outside
on what it believed was its turf. It would be almost four more decades before this
questionable blending of a physicians duties as practitioner and as researcher would
come under scrutiny. In the interim, medical research flourished as President
Franklin Delano Roosevelt created the Office of Scientific and Research
Development in 1941, which aided in the reinvigoration of the National Institutes of
Health by 1946. Prisoners, conscientious objectors, and the mentally incompetent all
became involuntary or coerced wartime research subjects5 as scientists tested the
limitations of the human body and searched for penicillin-like magic bullets. The
National Institutes of Healths Clinical Research Center, established the same year
James Watson and Francis Crick published the structure of DNA, furthered this
blurring between research and therapy (Rothman 1991). No longer could patients be
so sure their doctors were primarily concerned with treating rather than studying
their illnesses.
By mid-century, the birth of bioethics and informed consent was just around
the comer. In 1954, for example, Joseph Fletcher published his Morals and
Medicine, a book based on Protestant ethics that advocated the freedom of moral
beings to make their own, informed choices (Rothman 1991), and in 1965, the
Supreme Courts decision in Griswold v. Connecticut expanded the legal definition of
privacy in terms of Americans access to contraception. One year later, Harvard
Medical School professor Henry Beechers article Ethics and Clinical Research in
5 The use of humans as involuntary research subjects was nothing new. The Tuskegee syphilis study
funded by the U.S. Public Health Service began in 1932 and took advantage of poor sharecroppers.
24


the New England Journal of Medicine unveiled many of the abuses of research
subjects in the prior decades and launched what Rothman has called a critical period
of change that culminated in the 1976 Supreme Court of New Jerseys watershed
decision to allow Karen Ann Quinlans parents to disable her respirator (In the Matter
of Quinlan 1976). This period between 1966 and 1976 marks a shift in decision-
making authority regarding the body. And unlike the first half of the 20th century
when doctors had a firm grasp on that authority, the outsiders who began influencing
medicine after 1966 ranged from lawyers to legislators to religion and philosophy
professors. Although one would not have anticipated prior agreement among them on
most subjects, they shared a goal of bringing new rules to medicine (Rothman
1991:5).
The government also had a hand in rewriting the medical rulebook. As the
gap between professional and lay medical expertise widened, the U.S. Public Health
Service issued guidelines for all federally funded research involving human subjects.
This was a direct outcome of Beechers expose, as was the post-1966 increase in
malpractice legislation. Other factors, of course, also were at play, including
improvements in record keeping, thanks to automation, and a greater reliance on
medical technologies. In fact, the 1960s would boast the implementation of newborn
screening, the development of kidney dialysis, the drafting of Harvards brain death
criteria, and the first successful heart transplant. Medicine would never again be the
private dominion of the physician. Even the Harvard Brain Death Committee had a
lawyer and a philosopher among its members, and so-called God squad dialysis
scarcity committees often included lay members from the community. Questions
beyond the medical were at stake. As Rothman writes, experts in kidney functioning
were not experts in judging the comparative value of lives (1991:151).
In the next decade, ironically, as laws were being enacted requiring sickle cell
carrier testing among African Americans, two pivotal informed consent cases were
decided (Canterbury v. Spence 1972, Cobbs v. Grant 1972), governmental
25


commissions to recommend policies about human experimentation abounded, and
hospital ethics committees unofficially multiplied. Moreover, the Technology
Assessment Act of 1972 created the Office of Technology Assessment, and the
National Commission for the Protection of Human Subjects of Biomedical and
Behavioral Research released its Belmont Report in 1979 (Shapiro et al. 2003). The
Belmont Report, inter alia, established boundaries between medical practice and
medical research; emphasized basic ethical principles, including respect for persons,
beneficence, and justice; and recommended guidelines for selecting subjects,
obtaining informed consent, and assessing the benefits and risks of research. Private
decision-making also came under scrutiny as the issue of abortion was considered by
the Supreme Court in Roe v. Wade (1973) and the question of assisted reproduction
expanded with the 1977 birth of Louise Brown the first test-tube baby. In
addition, the mid-1970s witnessed scientific revolutions in the study of human
fertilization and human embryos (Hubbard 1999), leading to the creation of the Ethics
Advisory Board in 1979. This board, though lapsing in 1980 and reestablished in
1993, was commissioned with overseeing NIH funding for research involving
embryos created from in vitro fertilization.
Fetal research and infant care also highlighted the 1980s, as physician
Leonard Bailey transplanted a baboon heart into Baby Fae in 1984, federal Baby Doe
regulations were established in 1985, surrogacy came to the fore in the Supreme
Court of New Jerseys In the Matter of Baby M (1988), and government funding of
research involving the transplantation of fetal tissues into adults was revoked in 1988.
President Bill Clinton lifted the ban in 1993 with the NIH Revitalization Act, which
permitted the use of fetal tissue from spontaneous or elected abortions and stillbirths.
A 1994 NIH panel concluded, however, that embryo cloning, pre-implantation
genetic screening to determine sex, pregnancies in patients lacking uteruses (i.e.,
men), animals gestating human embryos, and animal-human hybrids all were
unacceptable (Shapiro et al. 2003). At this time, less seemingly outlandish questions
26


also emerged about what to do with the thousands of.cryogenically preserved
embryos amassed in artificial reproductive clinics. The American Society for
Reproductive Medicine proposed guidelines that would allow clinics to destroy
abandoned embryos after five years but prohibit donating them to infertile couples or
for research. After a privately funded researcher isolated stem cells from such
embryos in 1999, the NIH in 2000 issued guidelines related to the use of such
pluripotent cells and, in 2001, President George W. Bush limited federal funds to
research using only existing embryonic stem cell lines.
Of course, the crowning biotechnological achievement of the last twenty years
and arguably the 20 century is the National Institutes of Health and the Department
of Energys international cooperative, the Human Genome Project (HGP). Almost as
impressive as the scale and speed with which the HGP has been executed is the
mandated funding of research examining the ethical, legal, and social implications
(ELSI) of gene-based research and medicine. Since its inception in 1986, 5 percent of
the HGPs total budget has been set aside to investigate such issues. According to the
National Center for Human Genome Research, This is one of the first times
scientists have begun to explore the potential consequences of their research before a
crisis has arisen. It is difficult not to ask why particularly in light of the brief
history of the modem body outlined here. Rothman, in his book exploring the history
of the doctor-patient relationship, has emphasized how physicians and bioethicists
have focused their attention more on the one-to-one encounter of patient and doctor
than on the societal context of American medicine (1991:244-245). But this form of
ethics-at-the-bedside does not work in an age where bodies are increasingly
fragmented and parts are used and stored. Tissues and information about tissues, for
example, are now warehoused in pathology labs, blood banks, artificial reproductive
clinics, newborn screening archives, donor registries, medical insurance databases
(such as MIB, Inc.), the Department of Defenses DNA Registry, and the FBIs
Combined DNA Index System (CODIS). Modem bodies, moreover, often span the
27


phases of life (e.g., patients in persistent vegetative states) or overlap with one
another (e.g., pregnancy or shared DNA that may reveal information about
individuals and their blood relatives).
Bioethics, then, needs to widen its scope beyond the bedside, even before
theres a patient occupying that clinical bed. On the other hand, decisional law,
unlike biomedicine and the HGPs ELSI initiative, rarely has the chance to engage in
such Einsteinian thought experiments about the types of bioethical issues that could
be brought before the courts. It must look to legal history and enacted law for
guidance in cases of first impression, and it must balance competing interests in
bodies and body parts after problems have already arisen. But bioethics does play a
role in judicial reasoning. Embedded within case and statutory law are temporally
and culturally influenced philosophical principles employed in the larger society.
Thus, to understand it at all, the modem body must be placed within its historical,
medical, and legal contexts, as it is forged by these forces and, in turn, influences
them. But with bioethics and biomedicine just beginning to look ahead at the
potential ramifications of advancing biotechnology and a legal system constrained by
what has come before, there isnt an understandable framework explaining who has
decision-making authority over the body and when i.e., there isnt a clear picture
of the modem bodys boundaries.
This is not to say those boundaries do not exist. For example, the law, both
enacted and decisional, betrays notions of such boundaries as it helps to draw, redraw,
shift, or erode them. And this book examines those boundaries constructed by the
courts from 1872 with the decision of Pierce v. Swan Point Cemetery to the
present. By analyzing judicial opinions issued by the courts, it is possible to illustrate
how the modem body is bounded as well as the philosophical principles on which
those boundaries are based. Though rooted in the law, this is not a legal dissertation
but rather a philosophical look at the construction of the modem body, situated within
its legal, historical, cultural, and technological contexts. Because the courts are the
28


ultimate remedy in our society when private ordering breaks down (see Hart and
Sacks 1994), case law offers a historical record of bioethical conflicts as they have
emerged.
The bioethical focus of this book centers on culturally informed body
boundaries demarcations that define what is and is not the self and when. While a
working definition of body boundary is lacking in the current literature, John
Lockes concept of the continuity of the self as described by philosopher John Yolton
(2001) provides an interesting and applicable characterization. In defining a person
as a thinking intelligent being, that has reason and reflection, and can consider itself
as itself, Locke emphasized consciousness as the means by which a person,
regarding any past thought or action, realizes it is the same self now as it was then;
and tis by the same self with this present one that now reflects on it, that that action
was done (Locke 1997:302). This idea of the continuity of the self along with
Lockes characterization that the particles of matter that are part of physical man
have a vital union to both the self and the body is key when thinking about body
boundaries. How does one know, for example, when excised tissues continue to be
part of the self and when they do not? And how can I be the same self at the age of
three and at the age of thirty, even though the actual cells that make up my body are
different? This is the same question philosopher Peter Pesic (2002) has asked with
regard to Theseus ship that sailed to Delos every year to commemorate the slaying of
the Minotaur and the liberation of the Athenians. Every part on the ship, though an
exact copy, was replaced. Thus, was it the same ship? Or, we could ask whether the
White House, rebuilt after the British set fire to it in 1814 and restored again by
President Harry S. Truman between 1948 and 1952, today is the same edifice as
originally inhabited by John Adams. Lockes answer to this conundrum, Pesic says,
is that man is not just his atoms, but rather his consciousness and memory, which
connect childhood with age and ... a person asleep with the same one awake
29


(2002:31). Locke also believed that personhood is a moral state, and memory thus
links a persons rights and duties with his or her actions.
But if we are more than just our atoms, how can we explain the vignette at the
beginning of this chapter? Examples closer to home underscore the need for answers
to such questions, particularly judicial and legislative decisions such as Moore v.
Regents of the University of California (1990) and Oregons Genetic Privacy Act of
1995. In Moore, the Supreme Court of California held that leukemia patient John
Moore had no cause of action for conversion in his removed spleen, even though
physician David W. Golde contracted to use it in pharmaceutical research before
Moores splenectomy. The court did agree that Golde breached his fiduciary duty
and failed to obtain Moores informed consent, but in the end, Moores excised
tissues no longer belonged to him. Oregons Genetic Privacy Act, on the other hand,
declared that an individual[has] property rights to their [jzc] DNA (Everett
2002:53). Louisiana also has defined genetic information as the property of an
individual.
Just from these examples alone, its easy to see that keeping a firm hold on the
continuity of the self has grown more complex as biotechnology has advanced.
Todays most boundary-compromising technologies may be summarized as the new
biology, a term revived by Michael H. Shapiro, Roy G. Spece, Jr., Rebecca Dresser,
and Ellen Wright Clayton (2003) to refer to those processes of research and
experimentation related to human physiology that enhance knowledge and technique
and, ultimately, deconstruction and reconstruction of the body itself. In other words,
the new biology encompasses techniques that fracture basic living processes, such as
organ transplantation and the separation of genetics and gestation; blur fifes phases,
such as the cryogenic preservation of human embryos and the prolongation of fife via
respirators and gastronomy tubes; and transgress human limits, such as the use of
steroids and genetic engineering to enhance bodily performance. Neither inherently
30


good nor bad in themselves, instead such useful technologies cause us to question
what it is to be human.
Similar to Shapiro et al.s (2003) explanation of the technologies associated
with the new biology, this book examines boundaries that I have defined in terms of
phase, intersection, and fragmentation categories that raise questions about
humanity and the continuity of the self. With the category of phase, there is a
straddling of boundaries, like with those fife and death technologies described above
that call into question when life begins and ends. The generation of new life and the
demise of existing fife are processes that happen over some amount of time, and to
demarcate their borders oftentimes requires subjective decisions. Same with the
process of disease. As comparative literature scholar Julia Epstein (1995) has
explained, the body continually plays host to a variety of foreign microorganisms, but
there is a difference between colonization and infection. The bacteria and yeast
existing in the vagina are a perfect example. Both serve purposes but either can cause
illness.
Several bodies also can overlap what I have deemed the category of
intersection. This is a common theme in cultural folklore, as Pesic (2002) has
observed in his book examining individuality and identicality: Shakespeare,
Dostoyevsky, Kafka, and the Greeks, for example, all told stories about double or
merged identities. Pregnancy, of course, creates the ultimate philosophical problem
of intersected bodies. Genetically, the mother and the fertilized egg are unique, so
much so that the fertilized egg must trick the mothers immune system in order to
safely implant into the uterine wall. But there are few clear borders between these
two unique individuals, as nutrients continually pass from mother to fetus and fetal
blood cells can be found in the mothers circulatory system. Hermaphroditism also is
a type of intersected body, even though, as Epstein points out, only one gender can
exist in the legal world. And with genomic medicine on the rise, no longer are the
doctor and patient alone in the examining room. Information about genes and
31


susceptibility to diseases merges a patients body with those of his or her blood
relatives (sanguines).
Finally, bodies also may be fragmented, as in the case of Moores spleen or
the donor of unfertilized ova. In fact, with the advent of dissection, so says biologist
Lynda Birke, we have become so used to this perception of the body as a collection
of bits ... that it is difficult to imagine the inside of the body in any other way
(2000:52). But what becomes of these bits when they are physically separated from
the larger whole? One, by but no means the only, answer to this question reinforces
Lockes idea of the continuity of the self. In attempting to understand the complex
nature of electrons, Pesic, for example, considers how Greek philosophy explained
identity as a primitive thisness. In mythology, when gods disguised themselves in
their interactions with mortals, they were still recognizable by other gods. In this
sense, identity exists at a sacred, primitive level and is the union of something
visible or perceptible a name, a face with something invisible and numinous:
the hidden, indelible mark that sets Odysseus apart from all others, regardless of
disguise or the change of time and age (Pesic 2000:14). Pesic also contemplates
how Hectors helmet in Homers The Iliad continues to have a sense of Hectomess
even when he isnt wearing it. This was Homers means of making Hector an
individual. In both of these illustrations, identity and individuality are rooted at this
primitive level, even when parts of the body are disguised or detached.
It would seem then, especially as our knowledge of genetics has progressed,
that the modem body also retains some sense of identity or self-sameness.6 But when
do our helmets belong to us and when are they transferred to someone or into
something else? Can a tissues thisness change? At a subatomic level, all of the
electrons constituting that tissue are identical they have no individuated essence.
6 This is not to suggest that bodies only have one identity or that identity remains the same in all
contexts. Being an individual is a multifaceted affair ... a person of one or more types (Schatzki
1996:50).
32


How, then, do they comprise a specific organ (say, a kidney) in a unique individual?
Here, again, is a phase boundary that lacks clear distinction. Remove that kidney and
transplant it into someone else, moreover, and this now becomes an example in which
fragmented, phase, and intersected boundaries themselves overlap. Selfhood, then, is
nothing less than a balancing act between competing categories. Human bodies
become a continuum of differentiation. As pantheist Benedict (Baruch) de Spinoza
explained, the body is
a relatively complex individual, made up of a number of other bodies.
Its identity can never be viewed as a final or finished product as in the
case of the Cartesian automaton, since it is a body that is in constant
interchange with its environment. The human body is radically open to
its surroundings and can be composed, recomposed and decomposed
by other boundaries (cited in Gatens 1996:110).
Far from merely complicating life, boundaries are important and useful. They
aid in our decision-making e.g., this is permissible but that isnt. They allow for
discrimination, both in the neutral and pejorative senses of the term, such as which
berries are poisonous and whom we are permitted to marry. They keep internal
organs in and infections out. They help us recognize the self as the self, even in
varying phases and contexts, and distinguish the self from others. In short,
boundaries help us structure and make sense and use of our worlds. This is one of the
tenets of anthropologist Mary Douglas 1966 Purity and Danger. All bodies and
societies, Douglas has said, are composed of an internal structure and external
borders, with margins distinguishing the two. These margins or boundaries, though
not necessarily static or fixed, differentiate what is pure and orderly from what is
dangerous and disorderly. When attempting to halt danger, reduce disorder, or chase
dirt, particularly at these margins, we are ... positively re-ordering our
environment, making it conform to an idea (Douglas 1978:2). Anthropologist Emily
Martins work on the body as a type of defended nation-state reaffirms Douglas
33


thinking, because the immune system works to maintain purity within and to guard
from contamination without (1996:147).
But boundaries are also gateways and, thus, are vulnerable. When
restructured, redefined, or transgressed, according to Douglas, the shape of
fundamental experience is altered. Any structure of ideas is vulnerable at its
margins (1978:121). This is why the slippery slope, particularly with bioethical
questions, is so dangerous and that which to be feared. The slippery slope occurs
where a boundary has failed, either because its not strong enough or its not doing its
job. When this happens, we fear and at times rightly so tumbling down the hill
like the fabled Jack and Jill. And the nursery rhyme doesnt mince words Jacks
fall was fatal. Since there is no International Classification of Diseases (ICD) code
for broken crown, it is a diagnosis we are not certain how to treat. And with Jill
possibly left for dead (the verse doesnt tell us), there is a chance with a slippery
slope that we just might all go tumbling after. Failed boundaries, then, create a
chaotic world, whether those boundaries delimit bodies, societies, or ethics. In
researching HIV and AIDS, for example, both Martin (1996) and Epstein (1995) have
emphasized the vulnerability of compromised and collapsed boundaries. Body fluids
in particular present a danger in the transmission of diseases because they often
permeate boundaries. And the new biology constantly threatens to transgress or shift
body boundaries, creating a need for lines demarcating permissibility that have yet to
be established. Vulnerability and danger circumscribe boundaries, then, because
as cellular pathologist Jackie Leach Scully (2001) has explained in her work on
reverse ethics they are points of transformation where something of significance
happens.
At the same time, however, boundaries must be transgressable. The mouth,
for example, allows us to sustain life, the reproductive system to perpetuate it. In
fact, life is based on this very concept. The basic blueprint for a creature in the
animal kingdom is, de minimis, a body with one opening. Certain creatures such as
34


coelenterates (meaning stomach-mouth), sponges, and flatworms take in nutrients
and excrete waste from the same opening. Others, for example, roundworms and
humans, though a bit more complicated, are basically bodies with two openings. Not
only practical, the transgression of boundaries like eating or intercourse also
can be extremely pleasurable.
In sum, boundaries are culturally informed, useful, vulnerable, dangerous, and
transgressable barriers and gateways. This multidimensional nature of boundaries
should come as no surprise, particularly in relation to the body, since the body itself is
rarely ever unambiguous. It is both subject and object. Sociologist Bryan S. Turners
work in the mid-1980s on the body and society underscores this idea. In the
introduction to his book, Turner cites Karl Marx and Frederic Nietzsche: In
Marxism, the body is both the vehicle and the site of labour; it exists but it is
constantly transformed by human agency. In Nietzsche, our corporeal existence does
not pre-date our classificatory systems of knowledge and thus the body is nothing
more and nothing less than a social construct (1984:5). But knowledge comes from
mental processes, which are, arguably, rooted in the physical body. Thus, the body in
the Marxist sense is the vehicle even of mental labor, capable of transforming itself
and the classificatory systems of knowledge it has structured. Therefore, it does pre-
date and does not pre-date these classificatory systems simultaneously. Contrasting
Marx and Nietzsche, however, is dualistic, and perhaps they are both correct.
Whether our labors or our classificatory systems dominate our notions of the body
and its status as a person depends on context and circumstance and, as I argue in
this book with regard to body boundaries, on risk, intent, and ultimate use. Turner
obviously sees beyond such dualisms, identifying several types of bodies such as
material and immaterial7 organisms; persons; and aggregates (e.g., spiritual, cultural,
or legal). There are also some who possess more than one body simultaneously, such
7 E.g., ghosts, spirits, angels, etc.
35


as kings, popes, and pharaohs who are both individual bodies and embodiments of the
larger sovereign body. Conceivably, we all have at least two coincident bodies, as the
body is both a thing and a sign. As things, bodies are often the sites of causation,
ever more so following the changes in science and medicine beginning in the early
20th century. As signs, bodies are the sites of meaning and symbol. Taken together,
this is why we can simultaneously ask, What caused this disease? and Why did I
get this disease? Or, the basic questions of this book, Is this tissue useful? versus
Does this tissue still belong to me? Especially as advances in the new biology
continue, tissues may often be both.
As subject and object, locations of purity and danger, and the nexus between
self and other as well as the public sphere and the private sphere, bodies are rampant
with implied boundaries, whether these are boundaries of phase, intersection, or
fragmentation. This book attempts to unravel the boundaries of the modem body as
constructed in 20th-century case law in order to recognize when our bodies do and do
not belong to us. Though these three types of boundaries I have identified will be
heuristically helpful in reducing the chaos engendered by biotechnology when
answering this question, a final word of caution must be said about emphasizing the
boundedness of the body. Both Martin (1996) and philosopher Shannon Sullivan
(2001) have proposed less bounded views of body. Sullivan, in her work on bodies as
influenced by pragmatism and feminism, borrows the term transactional from
philosopher John Dewey to emphasize that there are not sharp borders between
organisms and their environments. Rather, beings and their surroundings exist in a
dance that is dynamic and co-constitutive. To think of bodies as transactional... is
to realize that bodies do not stop at the edges of their skins and are not contained
neatly and sharply within them (Sullivan 2001:1). This is similar to Emily Martins
concept of the separation-constant blur continuum (1996:149), with its endpoints
defined by viewing the body as a defended nation-state versus a constant blur
indistinguishable from its environment. As Dewey himself realized: The epidermis
36


is only in the most superficial way an indication of where an organism ends. There
are things inside the body that are foreign to it, and there are things outside of it that
belong to it de jure, if not de facto (cited in Sullivan 2001:3).
Finally, once we gain a clearer picture of the modem body and its boundaries,
a higher-order question of bioethics emerges: What are the ramifications of the way
the law is bounding the body? Does decisional law not only pragmatically but also
morally resolve questions of body ownership? Or does it gamble in a high-stakes
game too often poised on the edge of slippery slopes?
When it comes to the body and body parts, how well does the law roll the
bones?
37


CHAPTER THREE
DRAWING (CELL) LINES
Bodies are not created equally. These differences may be purely biological or
invented by the societies those bodies inhabit and construct. Often, differences are
some combination of both. It is human nature to perceive and create differences, and
we as cultures and as individuals have done so since the dawn of humanity. At times,
such fashioned differences are used to segregate, producing inequitable access to
provisions, institutions, opportunities, and rights. Certain bodies are elevated above
others. In Roman times, for instance, only the pater familias, the father of the family,
was considered a person, unlike women, children, and slaves. Women and African
Americans in the United States, moreover, first fully enjoyed the right to vote only in
the 20th century,8 while white men obtained this privilege with the ratification of the
Constitution in 1789. Even parts of bodies are imbued with varying valuations: In the
19th century, scientists measured brains and other body parts of males, females, and
minority populations, spuriously linking alleged biological differences with station in
life that deliberately reaffirmed the status quo (Kern 1996, Gould 1981). At other
times, differences are weighed in order to level the inequities of bio-social fife. This
explains our tax system and its considerations of socioeconomic status, family life,
and property ownership and the recent ruling of the Supreme Court upholding the
constitutionality of affirmative action (Grutter v. Bollinger 2003). But in these
varieties of situations particularly when conflicts of interest arise which type of
body wins out and when?
8 Even though the Fifteenth Amendment (1870) declared that no citizens right to vote may be denied
or abridged ... on account of race, color or previous condition of servitude, many Southern states
resisted and African Americans would not foil enjoy the right to vote until the Civil Rights Movement
in the 1960s.
38


The specific answers to this question vary across time and culture. The
changing models, techniques, and commercial structure of the new biology, for
example, all exert pressure on social ideologies (Wear 1992, Epstein 1995) and
challenge our classificatory systems by exposing conceptual gaps (Shapiro et al.
2003) and blurring existing borders. And when a classificatory system is challenged,
it may not be clear who is in charge of reifying or reorganizing it in essence, of
reestablishing order. Establishing order in terms of who has decision-making
authority over bodies and body parts is no simple task. With changes in patient
autonomy and advances in the new biology occurring in the last three to four decades,
we now have more choices and perhaps even an excess of choice. At the same time,
medical technology has become so advanced and specialized, the lay person cant
even begin to comprehend it. But it is more than just the individual patient grappling
with his or her new array of medical options. The new biology has invited into the
examining room the rights and interests of others as well. No longer is the medical
encounter a dyad of practitioner and patient. Today, there may be some combination
of practitioner, patient, blood relatives (sanguines), third-party payers, lawyers,
bioethicists, researchers, pharmaceutical companies, and stock brokers.
And with it has come new risks.
The advent of organ transplantation, perhaps more so than any other
technology in the 20th century, brought to the forefront the risk of objectifying bodies
and treating the body as a repository of medical devices (Shapiro et al. 2003:1157).
Becoming a donor and, say, giving up a kidney or part of a liver also puts ones
immediate and future health at risk in order to help someone else. Being a recipient
involves risk as well, including the chance of receiving a diseased organ or tissue.
Before screening regulations were implemented in the 1980s, even blood transfusions
were a source of disease transmission, particularly hepatitis C. Especially today,
there is also a fine balance between resolving the shortage of transplantable tissues
and the risk of coercing people into becoming donors. A recent incident involving
39


the donated remains of a 17-year-old Texan who died in a motor vehicle accident is
illustrative. Joshua Roberts father, upon learning that his sons heart, corneas, and
bones were harvested for transplantation, stipulated that the tissues could be donated
on the condition that no one would profit. The Red Cross sent the donated remains
back to Rick Roberts via FedEx, explaining that the Red Cross is a not-for-profit
organization that operates on a cost recovery basis.... However, we work with
hospitals and physicians who charge for their services. Therefore, the Red Cross
could not ensure that any future procedures associated with this donation would be
performed without charge (Schwartz 2003).
Other biomedical technologies also continue to call into question the
ownership status or usability of tissues. Advances in prenatal care as well as
artificial reproductive techniques have us fluctuating between treating gametes and
embryos as property or even commodities and elevating them to some level of
personhood. Legal scholars Lori B. Andrews, Maxwell J. Mehlman, and Mark A.
Rothstein (2002) have underscored the ironic ramifications of President George W.
Bushs 2001 decision limiting federally funded stem cell research to existing cell
lines. This decision increases the cost of such research, because many of these cell
lines are owned and patented by private biotechnological companies. Andrews et al.
argue that approximately 40 percent to 50 percent of these federal research funds will
thus go to licensing fees, paradoxically turning the fetal tissues President Bush
wished to protect as potential life into commodities.
With increasing knowledge of the roles genes play in disease causation,
moreover, practitioners have become caught in the balance of breaching doctor-
patient confidentiality versus shirking their fiduciary duty to do no harm and warn
those at foreseeable risk of disease. The Supreme Court of Floridas Pate v. Threlkel
(1995) and the Superior Court of New Jerseys Safer v. Pack (1996) highlight this
precarious equilibrium. While sanguines of patients with genetic diseases do have a
right to know of these health risks, the risk itself is indefinable. Currently, genetic
40


profiles do not necessarily translate into or protect one from the development of
disease. Though the Human Genome Project has rocketed ahead of schedule,
scientists do not fully understand how genetic knowledge will translate into everyday
medicine.
Biotechnological leaps, of course, usually involve using humans and their
tissues as research subjects, and since Henry Beechers 1966 expose, there also now
exists a delicate dance between regarding people as bioresources and chilling medical
research. As the authors of the 1964 Livingston Report, for example, wrote:
whatever the NIH might do by way of designing a code or stipulating standards for
acceptable clinical research would be likely to inhibit, delay, or distort the carrying
out of clinical research (Rothman 1991:87). This idea that society could be in
peril was reiterated 26 years later in the Supreme Court of Californias Moore
(1990) case. In general, this is the risk of trumping private interests in the name of
public ones, and vice versa. Today, we are even concerned about the risk of saying
no to science and, further, the risk of risk as an article on the genetics of
deafness illustrates by advocating that genetic counselors substitute the phrase
chance of deafness instead of risk of deafness when advising deaf couples who
are pregnant (Nance 2003). Risk has negative connotations and deafness is no longer
necessarily a negative affliction.
While specific answers to the question of whose interests win out and when
vary across time, culture, and institution, how we decide those answers is similar.
The process of constructing, reconstructing, and deconstructing boundaries is
analogous whether we are discussing bodies, elements, ethics, or the law. Like
bodies, boundaries are established by many factors simultaneously. As pathologist
Jackie Leach Scully has emphasized in her work on reverse ethics, there exists a
diversity of factors governing the location of boundaries (2001:189). It is at these
boundaries that several worlds or principles in this book, moral and legal
principles collide. Scully reminds us that, according to feminist theory, morality is
41


a negotiation between intersecting groups, with power relationships that are dynamic
and fluctuating (2001:200). Thus, there are multiple differentials that come into
play in any moral analysis and, comparatively, multiple principles organizing the
common law in any particular legal subject. Philosopher Kathryn Pyne Addelson, for
example, has defined the moral problem of abortion as a conflict of rights (cited in
Scully 2001:202); so too the legal problem of abortion is a conflict of rights. For
moral issues, the boundaries are rationalized in some morally meaningful way.
Likewise, a boundary in the law is rationalized in some legally meaningful way.
While moral and legal analyses are similar, however, it must be remembered that
judge-made law is a system specifically designed to locate solutions however
embedded within their own socio-temporal contexts to such conflicts.9 Whereas
bioethicists can leisurely immerse themselves in the many facets of the issue at hand,
courts and judges must draw conclusions that necessarily have real-world
implications for the parties involved.
A change in technology, then, may accompany or enable a change in body
boundaries, just as a change in how we view the body may accompany or enable
changes in technology. Thus, a boundary is not static, and a change in the factors
establishing it can alter the position of the boundary itself. Using phase boundaries
from the physical study of elements and compounds as a metaphor for bioethical
boundaries, Scully asserts that the position of the phase boundary will change if the
external constraints such as temperature or pressure, or the internal constraint of the
chemical composition of the substance itself, are altered (2001:192-193). In
studying corporate culture, for example, anthropologist Emily Martin discovered that
experiential team-building exercises outside of the workplace forged new linkages
... across many former sharp and of course hierarchical boundaries [inside the
9 True, courts may decide not to hear a case until it has ripened, but the court system itself is a last
resort when private ordering fails as well as where enacted policies and regulations become, to use
Hart and Sacks (1994) term, enfleshed.
42


workplace]: supplier/buyer; worker/manager; manual worker/mental worker
(1996:156). Sociologist Bryan S. Turner also has written of the transformative
potential ofpraxis (1984:5), and it should come as no surprise that what we do (e.g.,
develop new tools in biomedicine) transforms who and what we are (cf. Pierre
Bourdieus [1990] habitus). The body is transformed all the time, whether physically
(e.g., losing weight, aging) or culturally and socially (e.g., marriage, rites of passage)
or both (e.g., motherhood). The next logical question, then, is how we reconcile this
constantly transforming body with the continuity of the self, as discussed in the
previous chapter.10 Similarly, regarding body tissues, how do we lose or gain
body parts without breaching the continuity of the self? We do so all the time and
often without difficulty or conflict. Bodies are, therefore, fluid and continuous
simultaneously. Again, the metaphor Scully uses to establish her case for reverse
ethics is applicable here: That with a phase boundary between, say, the solid and
liquid forms of water, both phases coexist in stable equilibrium (2001:189). Add
salt to the water or increase the atmospheric pressure, and the temperature boundary
establishing the difference between solid and liquid shifts. With moral or legal
issues, there are morally [or legally] significant and rationally identifiable factors
holding the boundary steady (2001:190). In our capitalistic system of mass
consumption, for example, Turner discusses the commodification of bodies in terms
of a boundary between asceticism and calculating hedonism (1984:3-4), where
bioethical questions of what is permissible (e.g., the alleviation of illness or
impairment) are juxtaposed with what is hedonistic (e.g., cosmetic surgery, designer
babies). In the law, the same line might be drawn between what is a right (e.g., free
speech) and what is beyond a right (e.g., expectation of privacy as a convicted sexual
offender). Any alteration in these identifiable factors (e.g., the proliferation of
10 Cf. Yoltons (2001) interpretation of John Lockes man.
43


assisted reproductive techniques), and the moral or legal boundary might be
transformed as well (e.g., the selling of eggs via newspapers and the Internet).
In the chapters to follow, I have used an approach similar to Scullys depiction
of reverse ethics using the known position of the phase boundary to discover
something about the external constraints holding it steady. Judicial opinions
explicating the legal rulings concerning the ownership of or decision-making
authority over the body reveal a spectrum of philosophical theories courts consider
when balancing conflicting interests and, ultimately, a continuum of legally
acceptable uses of the human body. Such body boundary markers disclose insights
into the moral and legal principles that have helped shape them and have kept them
constant or allowed them to change. This is so because, when we as a social
aggregate establish a boundary, we justify its position, whether in religious, moral, or
legal terms, and then convince others of the truth ... that the line should be drawn
here (Sully 2001:191). In the common law, this is the essence of a judicial opinion
a persuasive, though not necessarily final, legal argument for justifying the
holding. This practice of drawing boundaries is reminiscent of Oliver Wendell
Holmes depiction of the growth of the common law in The Theory of Torts (1873):
First, a general distinction is drawn between two very different, conflicting cases
that serve to distinguish opposing poles. As subsequent cases are adjudicated by the
courts, however, these new cases cluster around these poles and begin to approach
each other, and the distinction [of the dividing line] becomes less clear (Kemp
1999:969; cf. Kellog 1990) or, in Holmes words, more difficult to trace
(1873:654). The determinations of the holdings in these cases, then,
are made one way or the other on a slight preponderance of feeling,
rather than articulate reason; and at last a mathematical line is arrived
at by the contact of contrary decisions, which is so far arbitrary that it
might equally well have been drawn a little further to the one side or
the other. The distinction between the groups, however, is
44


philosophical, and it is better to have a line drawn somewhere in the
penumbra between darkness and light, than to remain in uncertainty
(Holmes 1873:654).
The mathematical line is further solidified through this process that Holmes deems
successive approximation.11 As philosopher Frederic R. Kellog (1990) points out,
however, for Holmes, it was more accurate to view the cases as clustering around the
rules than to view the rules as clustering inside the cases.
Both Holmes and Kellog stress, moreover, that the law itself is not
indeterminate, but rather the indeterminacy that appears in the law is rooted in the
indeterminacy of social experience.12 So too may be said of bioethics. Attempting to
organize the indeterminacy or, in anthropologist Mary Douglas (1978) parlance,
chase dirt, the common law establishes rules and boundaries through courts
repeated exposure to particular types of cases; so-called hard cases that come along
(e.g., Moore) challenge the patterns that have thus far emerged. But this process of
successive approximation is why settled law as a whole, and each field within it,
embodies the outcome of ideological conflict. The law is like a patchwork quilt of
irreconcilably opposed ideologies (Kellog 1990). Like the body, there is also
perhaps a desire in the law to make the transitions as unambiguous as possible
(Scully 2001:191), however complex or indeterminate these boundaries might be.
Related to Michel Foucaults (1977,1980) work on biopower, body
discipline, and surveillance, Turners (1984) discussion of the secularization of
bodily management is also apt in relation to the law: Laws regulating bodies are not
11 Successive approximation also occurs in medicine: Physicians know the plots of these already
constructed cases and the many variants that both cluster them in a differential diagnosis and
ultimately distinguish among them (Hunter 1991:45).
12 Our inability to specify the last digit of n isnt exactly our fault (Shapiro et al. 2003:123).
45


new13 and no longer, at least in the United States and similar countries, are legal
questions about the body managed by ecclesiastical authorities. When disputes about
the permissible uses of the body are settled within the law, then, what is created is
bodily order from the chaos of lived experience akin to Holmes mathematical lines
or a secular form of Douglas distinctions between purity and danger. [I]deas about
separating, purifying, demarcating and punishing transgressions have as their main
function to impose system on an inherently untidy experience (Douglas 1978:4).
Because life and, therefore, the law are both untidy experiences, body boundary
markers impose structure on them that is both useful and flexible.
At any given time, however, according to Douglas, there are four types of
social pollution or disorder that threaten any system: (1) danger pressing on external
boundaries; (2) danger from transgressing the internal lines of a system; (3) danger in
the margins; and (4) danger from internal contradiction where a system is at war with
itself (1978:122). Examples of these types of danger can be found no matter if the
system is cultural,14 medical, or legal. In the world of diseases, examples might be:
(1) a skin rash or a gunshot wound; (2) tobacco and alcohol use; (3) an intestinal
infection or pelvic inflammatory disease; and (4) cancer, lupus, or AIDS. In the legal
world, in light of advancing biotechnology, examples could include: (1) gene therapy
that enhances performance or reproductive cloning (i.e., things that are legally
unacceptable); (2) the use of Moores tissues for research; (3) the autonomy of
patients in persistent vegetative states, the rights of embryos; and (4) balancing
conflicting rights as in the cases of abortion or breaching confidentiality for
genetically related third parties. Douglas also reminds us that a societys morals and
13 Roman law officially equated die persona with the self (a concept that still exists today and allows,
for example, celebrities to prevent advertisers from using their likenesses without permission or
compensation). The law, however, was not applicable to slaves, who did not own their bodies, had no
personality and had no claims over property (Turner 1984:56).
14 For cultural examples, see Douglas (1984), Purity and Danger: An Analysis of the Concepts of
Pollution and Taboo, London: Routledge and Kegan Paul.
46


what it considers permissible are not necessarily congruent, though they may touch or
overlap at times. For the law, this explains why what we can and cannot do with or to
bodies may be moral or immoral (slavery being a good example of the latter) in
other words, a distinction between rules and mores. After all, the nature of the law is,
as Holmes described, to adapt to changing beliefs and changing contexts over time.
Though there is little empirical data on the construction of moral worlds or
how these constructions engage with technologically novel and complex moral
issues (Scully 2001:202), case law fortuitously provides a written record of the legal
construction of what is permissible and when the judicial opinion itself is a source
of empirical data for anyone willing to cull it. Case law also documents the
evolution of body boundaries in the legal world. Even though lines may already be
drawn in the law (cf. Holmes 1873), they are still open for consideration and may be
reaffirmed, altered, or even discarded by later courts. The question of interest
becomes, then, whether these lines or boundaries are maintained in subsequent legal
cases and why.
Because the purpose of the judicial opinion is to justify the positioning of such
lines, in cases involving bodies the common law is metaphorically and literally
engaged in what Turner (1984) has called the government of the body. Most of the
time, we as individuals govern our own bodies and society as a whole structures the
body politic. But when individual bodies clash with one another or the body politic,
case law is the site where such conflicts are ordered. Thus, this book examines the
legal organization of bodies as justified within the reasoning of the common law and
the philosophical perspectives underlying it. This will be exceedingly useful for the
discipline of bioethics, as once such legal boundaries about bodies are revealed in
their spectrum of philosophical underpinnings, we can explore whether these effects
are beneficial or harmful, whom they benefit or harm, and ultimately whether they
should be embraced or transformed (Sullivan 2001:4). It is important to remember,
however, that
47


[ejthical principles and values, as well as choices involving policy, are
not introduced into rules through the medium of law. Rather, they are
implicated both in the development of standards of conduct, which are
in turn reflected in the decisions of cases in a given area of liability,
and in the development of the consensus from which the rule
eventually emerges. They do not exist apart from the situations that
are submitted to legal institutions for resolution (Kellog 1990).
But why do we even need such systems of boundaries? Because ambiguity
and indeterminacy convey a sense of instability, there is an impulse to believe that
the world is understandable, that it is orderly and operates on some logical plan that
people can sort out (Hubbard 1990:14). Whether talking about the human body or
the law, we as humans create structures of the worlds in which we live. In the law,
this is a reflexive process: We create structure via the law and the law, in turn,
imposes that structure back on us. Not that the structure cannot change, however.
This is one of the strengths of the law its concurrent flexibility and resistance to
change. And with any of our structures, legal or bioethical, it is important to
remember that what is isnt necessarily what ought to be. This book, for example,
provides a descriptive, not a normative, view of body boundaries as demarcated by
the law. It also very much matters who is engaged in the science or the law. The
social fabric with its imperfections and loose threads is a de facto component of
all scientific and legal endeavors. Thus, our individual subjective perceptions are
important and unavoidable, whether we accept or divulge these biased perspectives.
Thus, boundary perceptions can vary from person to person and institution to
institution. They also can change over time, so that what was once unacceptable can
become, through a series of steps, more acceptable. And the directions in which
boundaries shift often are influenced by particular life circumstances or the decisions
and actions each of us has made. Such multiple dimensions inherent in preferences
and values among individuals and institutions within a society must be balanced when
48


conflicts of interest arise, and then serious moral and legal arguments [that] may
have no obvious and clear resolution cry for some sort of tie-breaker (Shapiro et al.
2003:55).
But how do we do this? How do we break these ties? The first step is to
reference our structures our classificatory systems and the boundaries that
constitute them. Some conflicts, however, will strain these boundaries and seem, for
all intents and purposes, irresolvable.
When this is the case, we look to the mechanisms within our institutions
whether religious, professional, governmental, or judicial for reasoning out a
solution to de novo conflicts. All of these institutions, particularly medicine and the
law, attempt to impersonally balance competing interests consequently drawing,
redrawing, and erasing boundaries within the system in the process. In short, these
authorities identify and enter the contending perspectives of different parties
and yet remain detached from them, without losing a sense of their pull;... to tell
which of them rightly dominate under the circumstances (Shapiro et al. 2003:109).
Both medicine and the law rely, to a certain extent, then, on a case-by-case approach,
reasoning from the particular to the general. In doing so, as Holmes described in his
theory of successive approximation, the mathematical lines or the general rules can
change. (As legal scholars Michael H. Shapiro, Roy G. Spece, Jr., Rebecca Dresser,
and Ellen Wright Clayton have emphasized, the law, of course, does not consist of
formulations that address only highly particularized circumstances. It establishes
broad principles, standards, and rules [2003:113]). There may be limits to the
abilities of these institutions, however, in resolving the irresolvable, and we must
acknowledge that complete closure of a contested moral or legal issue may be
impossible (Shapiro et al. 2003:19).
When attempting to locate answers, balance interests, limit anarchy, and
restore order, cultures and their authoritative institutions often use explanatory stories.
For example, physicians have long employed the case history to understand their
49


patients illnesses. After all, according to medical ethicist Kathryn Montgomery
Hunter, the role of the practitioner is to interpret a patients physical signs in order to
construct a coherent and parsimonious retrospective chronological account of a
malady (1991 :xx). But like the modem body, the case history or case narrative also
has transformed since the 18th century. Then, a doctors story was primarily
constructed on the information directly provided by the patient him- or herself.
Medical historian Mary E. Fissell (1991), in her discussion on the rise of hospital-
based medicine, has emphasized how the importance of the individuals account in
the 18 century placed doctor and patient on near-equal hermeneutic footing. The
story that got told, then, often was the result of negotiations between them and was
scrutinized by doctor and patient alike. As medicine came to be based more on signs
and symptoms, Fissell has illustrated, the patients narrative became redundant. And
by the 1780s, the doctor had usurped the storytelling. Since then, and especially
following the emergence of modem medicine at the turn of the 20th century, the case
history has become a story that is professionally filtered. Though practitioners still
listen to our complaints, only certain information ends up in our medical records and
our own medical stories are, thus, retold. Hunter (1991) even underscores the double
meaning inherent in the physicians rounds and case presentations: Doctors both
present a case and represent that case simultaneously. The original story and the
representation, however, no matter how similar, are not the same.
But explanatory stories whether original or reproduced serve very
practical purposes. Anthropologist Cheryl Mattingly, for example, has conducted
groundbreaking work on the importance of narratives or stories and their role in
professional practice (1998:3). In research on World Bank professionals in 1983,
Mattingly realized that professionals were particularly likely to tell stories when they
needed to make sense of difficult relationships with actors whose behavior directly
effected [sic] their own work and that there exists an interesting and interwoven
relation between telling stories and making practical decisions (1998:3). Rather than
50


viewing a narrative as a story that directly represents life as lived, however,
Mattingly has taken an anti-mimetic stance that views narrative as transforming
and distorting life as lived.... A story, after all, is a rhetorical structure which is meant
to persuade, to provide a perspective on what happened as part of telling what
happened (1998:25-26). Within this narrative as social act, then, narratives do not
merely refer to past experience but create experiences for their audience (1998:8,
emphasis deleted) because they require a narrator, that is, an authoritative point of
view which surveys the whole action landscape from beginning to end and recounts
the story events in a particular way (one which ultimately gives the story its meaning
and morals) from this privileged perspective (1998:34, emphasis deleted).
Whereas patients once enjoyed privileges in the telling as well as the treating
of their diseases, today we lack certain controls over the medical records that
purportedly belong to us. The medical case history and the judicial opinion have
much in common. Judicial opinions not only professionally filter the facts of a case
but also re-present how the conflict was legally handled by the lower courts as well
as how similar cases were adjudicated in other courts. The judicial narrative
highlights what legally counts from the original story, like the case history
highlights what is medically relevant. And both case history and judicial opinion,
often beginning in the middle of the initial story, declare an implicit argument for
action (Hunter 1991:64). Unlike the medical case history, however, which may only
create a sense of control over the chaos of illness, the judicial opinion does in fact
produce some measure of control over how we are to interact in society, even as
society changes.
Narratives, then, are not merely creations that are told once events have
concluded but are constructed during events while the action is ongoing.15 Meaning
is thus defined and redefined through interaction (Strauss and Corbin 1998:9),
15 The same may be said of the social creation of bodies and selves through the process of embodiment
involving habitus and practice (Bourdieu 1990, Hallowell 1955, Merleau-Ponty 1964).
51


whether it be between doctor and patient or judge and legal facts. This concept of the
proto-narrative Paul Ricoeurs idea that action is in quest of narrative
(Mattingly 1998:6) is similar to Joseph Hutchesons (1929) hunch, Benjamin
Cardozos (1949) stream of tendency, or Robert Satters (1990) seemingly informal
method of deciding a case in the legal world. While different narrators or even the
same narrator could tell one story in a number of ways, the narrative that gets told has
real-world consequences and helps shape events and, thus, reality. Someone must
choose what is told, selecting certain facts and events in lieu of others. It is judges
who are responsible for these choices in decisional law (see discussion of Holmes
[1873], supra), and what is chosen shapes the landscape of the legally permissible. In
addition, as Mattingly has emphasized, the practical wisdom found in a well-told
narrative is more than mere technical knowledge about the means to achieve an end
but one in an Aristotelian sense that concerns moral questions about which ends
[are] worth pursuing (1998:3). Thus, a well-constructed narrative straightens
events and reveals a deeper truth about the nature and form of lived experience
(1998:30).
But a caveat must be issued about professionally filtered narratives. While
narratives are practical, they often create a sense of detachment. For instance, as the
patients narrative was replaced by physical diagnosis and post-mortem dissection,
the body, the disease, became the focus of the medical gaze, not the patients version
of the illness (Fissell 1991:100). Thus, the view of the whole patient, the self, was
removed from the medical narrative. If the body not what the patient himself says
is wrong is the central focus of the doctors gaze, then it is easy to see how one can
view the body and its parts as just that parts. The patient as a whole greater than
the sum of her parts begins to disappear as her narrative disappears. This departure of
the person from medical narratives, particularly by the 20th century, comes as no
surprise when situated in the context of what cell biologist and philosopher Lenny
Moss (2003) labels the phylogenetic turn. As biologists began to focus on
52


phytogenies instead of ontogenies, the individual organism, with its own adaptive
capacities, began to recede from view and individuals became naught but pawns in
relation to the processes that occur over many generations (2003:4, 6). Similarly,
while lines of cases and their judicial opinions establish and illuminate broad
principles, standards, and rules, the private actors originally involved in the legal
conflicts also fade from view. Here, actual bodies and conflicts are replaced by
textual authority (Fissell 1991, Epstein 1995). The text of the case history or the
judicial opinion becomes the nexus of the subjectivities of the participants (i.e.,
patient, practitioner, plaintiff, defendant, judge) and the objectivities of the form or
type (i.e., disease, legal precedent).16 A once indeterminate illness or conflict of
interests can now be placed within the classificatory system where it belongs. It may
still exert pressure on existing boundaries within that system and boundaries may
shift, but the chaos of social life is bested and stability is reinstated.
It is in this way that stories are powerful. They embody the storytellers
background, describe what is (however accurate that might be), shed light on the past,
organize the present, provide their audience with an argument for action, shape the
future, and straighten out the ambiguities of life. Most importantly, they allow
particular cases to be expanded into testable generalizations (Hunter 1991:25).
Both medical and legal narratives create and test social and moral categories (e.g.,
what is a legitimate reimbursable illness? Who counts as a person within the
Fourteenth Amendment? Who can own property?). And eventually, these ordered
narratives take precedence over the fragments of human experience (Epstein
1995:29) and, thus, truly are representations. Such social documents, containing
more than just medical or legal information, provide a narrative justification of the
classificatory systems that structure social life. Moreover, and this is important to
16 A diagnosis must be adequate to the facts and seem plausible to the patient it describes; it must be
generalizable to other cases of the same kind and useful when applied to the cure or relief of the
patients malady (Hunter 1991:16). In other words, it must be both specific and general. So too the
judicial opinion.
53


note, only the narrative can be manipulated to account for the facts (Hunter
1991:24). Hunter draws this conclusion while comparing a physician diagnosing a
patient and Sherlock Holmes solving a case: Experiment is forbidden to both
detective and diagnostician, for theirs are observational sciences exercised after the
fact. The clues must be dealt with as given (1991:24).
Narrative, then, bridges the gap between case and principle. It generates and
tests hypotheses. And it provides both the meaning of events as well as the means for
interpreting those events thus betraying underlying moral and political
philosophies.
Whether physician or judge, meaning is extracted from the narrative as the
professional reasons from and resolves the concrete instance.17 While the goal of the
health practitioner is not scientific measurement but, rather, treating and diagnosing a
patient (Hunter 1991), the objective of the legal system involves both settling the case
at hand and elucidating the path of the law the legal principles that forge the
holding. Thus, there is some sense of measuring the law in a judicial narrative as
facts, competing interests, and principles and philosophies are weighed. And it is this
measurement that betrays the positions of boundaries as well as the justifications for
why they are where they are.
While these judicial philosophies justifying the boundaries circumscribing
the modem body could be grouped in several ways, such as using the four tenets of
bioethics autonomy, beneficence, nonmaleficence, and justice I have grouped
the philosophical principles judges use when resolving conflicts here according to
privacy interests of the individual, utilitarian interests of the collective, and
procedural interests of the system. Privacy interests at the level of the embodied
individual include: autonomy, liberty, self-determination, bodily integrity, and
property or quasi-property. Utilitarian interests at the level of the collective include
17 See also sociologist Isabelle Baszangers (1997) work on chronic pain and the construction of
operational knowledge.
54


the elevation of legitimate state or public interests and the states parens patriae duty.
Finally, procedural perspectives at either level involve duty, substituted judgment,
foreseeability, intent, and risk. (Not explicitly examined in the remainder of this
book, issues of fairness, equality, and justice, of course, are always essential to the
law.) Taken together, the courts use of these philosophical perspectives, within the
systems procedural formality that relies on stare decisis, helps shape our
classificatory systems in relation to the modem body. Thus, answers to the questions
of how and when we can use our bodies and whether excised tissues still belong to us
may be found in decisional law. In this book, I review 20 -century cases involving
such questions about the body, and throughout I will make the case that, in the
weighing and balancing of competing interests using stare decisis, the law
pragmatically organizes body boundaries according to risk and intent and, thus,
ultimate utility.
In order to reach this conclusion, I have had to operationalize the judicial
opinion and use it as data. Operationalizing such professional legal narratives
examining how they construct, reconstruct, and deconstruct body boundaries
however, is an exploratory process that draws concepts and principles directly from
the authoritative texts in a way that, as grounded theorists Anselm Strauss and Juliet
Corbin have explained, offer insight, enhance understanding, and provide a
meaningful guide to action (1998:12). Much of what you will find in the following
chapters has been directly culled from the legal texts using an inductive methodology
similar to the grounded theory model defined by Barney Glaser and Strauss in 1967.
Although Glaser and Strauss have frowned upon the use of a priori or preconceived
theories as a researcher begins a project, exceptions have been noted to such
completely inductive approaches that allow for theory building rather than hypothesis
testing, particularly when a projects purpose is to elaborate and extend existing
theory (Strauss and Corbin 1998:12). My intention with this book is to illuminate
the classificatory systems U.S. courts use when balancing the competing interests in
55


situations involving body boundaries. I do not aim to test the veracity or value of
these systems, only to highlight the practical and bioethical considerations and
constraints. And though one might want to create a hierarchy where one
classificatory system must be better than the other (an ethic of care is better than
justice ethics), for example, it is important to note that there is often more than one
approach available (Scully 2001:203).
The same could be said in terms of methodology. Several methodologies
could have been employed in the selection of cases used in this book.18 The chosen
cases, moreover, could be grouped in a variety of ways. And as thousands of cases
are brought before the vast system of U.S. courts every year, additional cases could
be added seemingly ad infinitum. The following chapters, however, are based on a
concrete number of cases, arranged according to my schema of types of legal
bodies. In selecting the 338 cases used (See Table 3.1), I began with a convenience
sampling of cases cited in two legal casebooks Shapiro, Spece, Dresser, and
Claytons (2003) Bioethics and Law: Cases, Materials and Problems and Lori B.
Andrews, Maxwell J. Mehlman, and Mark A. Rothsteins (2002) Genetics: Ethics,
Law and Policy. Though neither casebook specifically addressed my research
question nor were they inclusive of the cases I was interested in or exclusive of the
cases I wasnt, using them allowed me to begin with cases related to bioethics and,
thus, the body.
Table 3.1 Cases Used in Research
Type of Case Used in Research Cases Cases Total
U.S. Court Yes 336 336
English Court Yes 2 2
U.S. Court No 70 70
Total No. of Cases 338 70 408
18 For detailed discussion of methods, see Appendix B.
56


After downloading these initially selected cases from LexisNexis, I next conducted a
snowball sampling, choosing applicable cases cited in the initial set and downloading
them as well. When applicable, I used the most recent opinion generated by the
highest court.19 As there may never be an end to such snowball sampling (every
judicial opinion must cite some precedent), I ceased my downloads when I felt my
data had become saturated i.e., patterns and redundancy in the rulings and the
employed principles emerged. Part of this patterning and redundancy is due to the
method of stare decisis employed by the courts that establishes lines of cases.
Though examined in this book at an individualistic level, it is important to remember
that a judicial opinion is never an isolated, solitary case. It has a context of its own
and a place in a pedigree akin to an anthropologists kinship diagram. In the midst of
and following my snowball sampling, I examined these cases, summarizing the facts
and the interests of the plaintiffs and defendants; highlighting the dicta and holdings
issued by the courts; and extracting key phrases and philosophical themes within the
rulings (see Table B.4 in Appendix B). To organize and expedite this process, I
electronically downloaded all cases from LexisNexis; formatted them using Microsoft
Word; and coded them with the aid of qualitative data analysis software AtlasTi
(see Table B.3 in Appendix B). Although AtlasTi allowed me to group cases
according to families of my choosing, I also used Microsoft Excel to arrange and
manipulate these categories, which I labeled according to body or tissue type and the
tissues ultimate use. As the following chapters indicate, I designated cases to five
types of bodies: the dying body (with 96 cases), the incompetent body (90), the
pregnant body (43), the dissected body (58), and the informational body (78). I also
used fourteen (14) cases for background purposes; cited a total of thirty-eight (38)
19 The most recent ruling in the Court of Appeals for the Sixth Circuits case oiBrotherton v.
Cleveland, for example, dates to 1999, though this case merely provides a ruling on a claim of
Eleventh Amendment immunity. Of interest to this research, however, is the courts 1991 opinion,
which reversed the district courts ruling that Brotherton had no federally protected claim in her
deceased husbands remains.
57


cases in this chapter, the previous introductory chapter, and the final concluding
chapter; and read but ultimately discarded seventy (70) cases that were not on point
with the purposes of this research.
There is overlap, of course, among my five types of bodies and, thus, seventy-
nine (79) cases have been assigned to more than one category (see Table 3.2).
(Brotherton v. Cleveland [1991], for example, involves a dissected, dead body.)
Furthermore, it was difficult to draw clear boundaries between categories, such as the
dying body and the incompetent body. Bodies in persistent vegetative states (PVS),
for instance, span both. In deciding which chapter such overlapping bodies belonged,
I simply drew a line and made a choice e.g., including cases involving withdrawal
of life support from PVS patients in the chapter on the incompetent body rather than
the dying body though seventy-nine (79) cases have served double-duty to instruct
my analysis in more than one chapter.
Table 3.2 Cases Used By Chapter
Chapter Title Use Reject Total
1 No Chapter: Background Cases 14 14
2 The Bounded Body 12 12
3 Drawing (Cell) Lines 7 7
4 The Dying Body 96 96
5 The Incompetent Body 90 90
6 The Pregnant Body 43 43
7 The Dissected Body 58 58
8 The Informational Body 78 78
9 Rolling the Bones 19 19
10 No Chapter: Cases Not Used 70 70
Total 417 70 487
Total (from Table 3.1) 338 70 408
Total Duplicate Cases 79 0 79
Regardless, the chapters that follow on the five bodies illustrate my contention
that U.S. courts employ themes of risk and intent when determining legally
acceptable and, thus, ultimate uses of the body and its parts.
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The cases in Chapter Four: The Dying Body are by far the most varied of the
cases used in this book in terms of courts final holdings. The Dying Body discusses
both cases concerning the possession of dead bodies for purposes of burial, autopsies,
and transplantation as well as cases where competent patients have refused life-
sustaining medical care. Whether courts have ruled there are quasi-property rights in
a dead body or whether one always has the right to die, U.S. courts in their decisions
routinely employ risk analyses and contemplate the intentions of the parties involved,
the legislature in its enactments, and previous court opinions.
This variation in rulings, which often creates diverging lines of cases that later
courts may follow in their own opinions, continues into Chapter Five: The
Incompetent Body. Chapter Five includes medical decision-making cases
oftentimes the withdrawal or withholding of life-sustaining treatment of the
formerly competent (e.g., PVS patients, elderly Alzheimer patients); the never
competent (e.g., those developmentally disabled from birth); and the potentially
competent (i.e., minors). Such cases require a substituted judgment on behalf of the
patient, and courts vary in their determinations of which standards of procedure ought
to be followed. A substituted judgment may take the form of effectuating only the
intentions of the patient as if competent, deciding in the best interests of the patient,
or choosing what a reasonable person would do. In the first type, decisions might be
made regardless of the risks posed. In the latter two, decisions often take some form
of a cost-benefit analysis. Apart from the type of substituted judgment, courts also
frequently require evidence to be clear and convincing, so that errors in such life-and-
death judgments are mitigated. Risk, then, more so than intent, guides courts when
adjudicating cases in which patients are not capable of deciding for themselves.
The Incompetent Body also presents itself in Chapter Six: The Pregnant Body,
particularly in relation to abortion. First, questions about the rights of potentially
competent minors to obtain abortions are often decided in cases involving the rights
of competent adults. More importantly, however, is the assumed conflict of interests
59


between a competent pregnant woman and her legally incompetent fetus in cases of
contraception, abortion, and fetal endangerment. Intent, similar to risk in Chapter
Five, plays the guiding role in Chapter Six. For example, a pregnant woman cannot
abort her fetus after it is viable, but she may refuse life-sustaining medical, even
though the risk of death to the fetus may be similar. The womans intent to exercise
her autonomy rights in the latter instance, as opposed to her intent to terminate a
pregnancy in the former, makes all the difference.
Intent also directs .court decisions in Chapter Seven: The Dissected Body,
which includes cases of artificial reproduction, transplantation, and other excised
tissues. Contractual pregnancy (i.e., surrogacy), though a pregnant body, has only
been possible with a fragmenting of the reproductive process and is, therefore,
included in Chapter Seven. And though gametes are crucial components in becoming
pregnant, cases concerning the ownership of gametic material and the legal parentage
of children produced via artificial reproductive techniques are also included in this
chapter.
Often, the dissected body is a procreative body. Because advances in artificial
reproduction have fragmented traditional reproductive roles and today parents may
have reduced or no biological connection to their child, courts tend to determine legal
parentage on the basis of procreative intent a but for type of reasoning (e.g., this
child would not have come into existence but for this persons actions). Courts in
their parens patriae role, however, typically consider the best interests of the child
with regard to custody.
Chapter Seven also examines cases involving transplantation and other
excised tissues (e.g., Moore) excluding those used to obtain information (e.g.,
paternity, DNA identification). Intent to donate an organ or tissue, rather than simply
physical separation from the larger whole, often changes possession of a body part.
On the other hand, risk again becomes paramount with other types of excised tissues,
particularly as courts balance an individuals interests against potential health hazards
60


or medical benefits to the society-at-large. The risk of chilling medical research, for
instance, may limit an individuaTs rights to his excised tissues.
This cost-benefit analysis balancing individual and utilitarian interests
continues in Chapter Eight: The Informational Body, which examines cases where
bodies betray information about behavior (e.g., drug use), disease status, disease
susceptibility, paternity, and identity. To wit: Public interests repeatedly outweigh
privacy rights in the DNA fingerprinting of violent offenders. But the knowledge the
informational body provides is often a means of evading foreseeable harm. Such
risks maybe behavioral (e.g., lead exposure levels), infectious (e.g., screening
donated blood for HIV), or genetic. Conversely, courts scrutinize the intentions of
the powers that are databanking such information from bodies with caveats that
safeguards be in place to prevent misuse of the compiled sensitive information.
Associated with and cross-cutting all of these body categories, moreover, are
cases of incarcerated or military bodies, whose rights are limited in comparison to
civilian bodies. Finally, Chapter Nine: Rolling the Bones constructs a philosophical
model of the legally bounded modem body, and further examines the concepts of risk
and intent from a sociopolitical and a Marxist perspective. Here, I also pose the
question of whether courts really roll the bones i.e., gamble with the slippery
slopes of bioethical questions and body boundaries or function as the homeostatic
system that allows bodies to remain flexible but stable.
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CHAPTER FOUR
THE DYING BODY
Death is unique. It is unlike aught else in its certainty and its incidents. A
corpse in some respects is the strangest thing on earth, wrote Judge Lumpkin in
Louisville & Nashville Railroad Co. v. Wilson in 1905.
A man who but yesterday breathed, and thought, and walked among us has
passed away. Something has gone. The body is left still and cold, and is all that is
visible to mortal eye of the man we knew. Around it cling love and memory.
Beyond it may reach hope. It must be laid away.
Though written a century ago, the Supreme Court of Georgias description of
death rings as true today as it has, perhaps, since the dawn of humankind. What death
is and what comes after are eternal questions of our species. So, too, is the disposal
of the dead. In fact, there is evidence that the special handling of a decedents
remains may even be older than modem Homo sapiens (Leach 1972). But while most
cultures have been reluctant to treat the dead as mere objects or things, conflicts can
and do arise regarding what to do with the deceased.
As with any dispute that emerges in what philosopher Thomas Hobbes (1934)
deemed a solitary, poor, nasty, brutish, and short life, a civil society requires
mechanisms for resolution when conflicts emerge regarding the dead. In England in
the 18th and 19th centuries, the dead were under the domain of ecclesiastical law. In
the United States, however, with its doctrine separating church and state,
disagreements about dead bodies became questions for the common courts. At least
since 1872, U.S. courts have based their answers to the question concerning what to
do with a dead body on the notion of quasi-property. In Pierce v. Proprietors of
Swan Point Cemetery (1872), the Supreme Court of Rhode Island emphasized a
62


persons right to direct his place of sepulture and to provide by will for the
disposition of his body, even though a dead man cannot be said to have rights.
Sepulture of the dead is held in high regard in our society. As Judge Albert wrote in
King v. Frame (1927), In all countries, both ancient and modem, except where
cremation is the practice, the first care of the people has always been to select a place
for the burial of their dead. Many of the early 20 -century disputes over decedents
examined here involve such burial rights. Unlike English ecclesiastical law where, as
Blackstone emphasized, the heir has a property in the monuments and escutcheons
of his ancestors, yet he has none in their bodies or ashes (cited in Louisville &
Nashville Railroad Co. v. Wilson 1905), the Pierce court established a sort of quasi
property in decedents, to which certain persons may have rights, as they have duties
to perform towards, it arising out of our common humanity.
And though the person having charge of it cannot be considered as the owner
of it in any sense whatever, U.S. courts have concurred since Pierce that the next of
kin do have interests in a decedents body.
When conflicts arise regarding what to do with a dead body, courts often
prioritize a decedents wishes, if known though they note that such wishes are not
absolute and may be overridden by issues of burial standards or public safety. In
Pierce, for example, Almira F. Pierce the daughter of Whiting Metcalf brought
a suit against her mother when the latter disinterred Whitings remains from his grave
of 13 years and moved his body to a different cemetery. Recognizing Metcalfs
alleged desire to be buried in the plot he had originally selected, the court concluded
that as the body was removed by the widow, without the consent of the child, from a
place where it was deposited by his own wishes and her [the widows] consent, we 20
20 The Anatomy Act of 1832 in England did set a precedent of legal possession in a dead human body
in Anglo and Anglo-American law. The continued and explicit prohibition of property interests in an
English corpse even after 1832 was possibly due to historical misinterpretations of the common law in
the 17th century, as all matters concerning dead bodies were handled by the ecclesiastical courts and,
thus, were not subject to the common law.
63


think it should be restored to the place whence it came. This ruling was based on a
recognition of Metcalf s wishes while he was alive, even though it meant disturbing
his remains a second time in order to restore him to the original burial lot. The court
even went so far as to emphasize that, though the proprietors of the cemetery did have
a certain amount of control over cemetery property, they were merely trustees of
those buried there and were to execute the wishes of the decedents.
While most courts, like the Pierce court, have prioritized the expressed wishes
of the deceased in determining where to bury remains or whether they can be
disinterred, other courts have weighed in a type of cost-benefit analysis the
transgression of disturbing the dead. In Smiley v. Bartlett (1892), for instance, Ohios
Sixth Circuit was called upon to resolve a dispute between family members who all
had equal interests in the remains of their mother, Sarah Holmes. Each has an equal
right and an equal voice in this matter, Judge Scribner wrote in the opinion, and in
the exercise of such individual judgment and choice, each might select a different
place for the burial. No mere majority can be permitted to control this choice. While
Holmes herself had made known her wish to be buried by the side of her deceased
husband; nevertheless this consideration is not to have absolutely controlling effect.
Because she had been buried in a suitable and proper manner, in a locality to which,
so far as its surroundings are concerned, no possible objection can be taken, the
court held it was reluctant to disturb the repose of the dead and ruled the mortal
remains of this aged mother should be permitted to rest in peace.
The wishes of the dead themselves may also pose conflicting interests, as in
Ohios Third Circuit case of Hadsell v. Hadsell (1893), where it was Almon Hadsells
wish to be buried next to his deceased first wife, Aurilla, but also in a newer and
larger portion of the cemetery. Almon had already been buried next to Aurilla in an
older and more crowded section. Carrying out his wishes, then, meant disinterring
the remains of both. Regardless, the court allowed the exhumations, based in part on
the fact that Almons original burial was in an overcrowded portion of the cemetery
64


and, therefore, was an unsuitable lot. hi its opinion, however, the court did not
discuss or consider Aurilla Hadsells wishes, and even though it cited the Smiley
courts strong language that a proper respect for the dead, a regard for the tender
sensibilities of the living, and the due preservation of the public health, require that a
corpse should not be disinterred ... except under extreme circumstances and
exigency.
While generally respecting decedents wishes, courts have tended to follow
the quasi-property model set forth in Pierce though careful to remind that a dead
body is not real property and cannot be inherited and have allowed civil actions to
be brought in relation to mishandling the deceased. For example, when Penina
Wilson hired the Louisville and Nashville Railroad Company to transport her
deceased husband from Atlanta to Warrenton, Georgia, the railroad placed the coffin
and body on a platform in the rain for several hours, refusing to move it at Wilsons
request {Louisville & Nashville Railroad Co. v. Wilson 1905). In a suit for breach of
duty and negligence in the mutilation of the body, Judge Lumpkin held that if the
company received this body to be transported for hire, it was bound to discharge the
duties arising from so doing, and for a failure to do so would be liable to an action. ...
[T]he action is for a tort, and there is an allegation of actual pecuniary damage to the
coffin and shroud, and of injury to the body. In other words, Penina Wilsons quasi-
property was damaged and she was legally owed some type of compensation. On the
other hand, while also recognizing a spouses quasi-property right in a decedent, the
Court of Appeals of Georgia in Pollard v. Phelps (1937) overruled a jurys verdict in
favor of a wife whose husbands dead body was run over by a Georgia Railway
Company train. Requesting a sum of $20,000 for the mutilation, mangling, and
neglect of his body after death, and for the mental pain, anguish, impairment of
health, nervous and bodily shock to her caused by said treatment, Ida Phelps was not
allowed to recover, the court said, without showing injury to person or purse or that
65


the acts of the defendant were wilful and wanton. Because the evidence showed
neither, the Georgia court concluded, the verdict was unauthorized.
Despite the variety of rulings in these cases, they provide an interesting
starting point to consider who has decision-making authority over bodies and when.
Legal interests in a dead body do exist and have been acknowledged by the courts.
Even dead, bodies are not res nullius" belonging to no one and the
infringement of which may be redressed by an action in damages, as the Supreme
Court of New Jersey said in Spiegel v. Evergreen Cemetery Company (1936), when a
father was mistakenly buried in the wrong plot. The court found that a reckless
disregard by the wrongdoer of the legal rights of the victim is properly classable as an
intentional infringement a willful wrong; and where, as here, a grievous injury to
the feelings is reasonably certain to follow, that injury is presumed to have been
intended, and the consequent mental suffering is compensable.
Such rights are not absolute, however. As the Supreme Court of Utah stated
in its In the Matter of the Estate of Moyer (1978), disposition of the deceased,
because of
the public interest, including its health, safety and welfare ... is not
subject entirely to the desires, or the whim or caprice of individuals,
but is subject to control by law. ... [A] person could give absurd or
preposterous directions that would require extravagant waste of useful
property or resources, or be offensive to the normal sensibilities of
society in respect for the dead.
(See, e.g., AlcorLife Extension v. Mitchell [1992] examining the Catch-22 of a
cryogenic suspension company that was neither funeral home nor organ procurement
organization.) Moreover, according to an appellate court in Texas (Fowlkes v.
Fowlkes 1939), though the spouse has a primary right to the possession of the
deceased, once buried such custody ceases and the decedent becomes the custody of
the law. The body can then only be disturbed for necessary or compelling reasons. In
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Fowlkes v. Fowlkes (1939), when wife Eva was not allowed to disinter her husband in
order to move his body to another cemetery, Chief Justice Monteith concluded:
disinterment of dead bodies is discouraged by the courts ... and is as
well repugnant to the sentiment of humanity. ... While it is the
recognized rule in this state that the wife, upon the death of her
husband, has the primary and paramount right to the possession of his
body and the control of the burial or other legal disposition thereof...
the rule has also been established that when the duty to furnish proper
burial has been discharged the right of custody ceases and the body is
thereafter in the custody of the law. ... Thus any right of the wife to
remove the body after it is interred is a qualified one.
Apart from these exceptions related to the public interest, these cases still
indicate that the common law does recognize a quasi-property right in a decedent.
Critiques of quasi-property do exist, however. Legal scholar William L. Prosser has
called quasi-property a legal fiction,21 evolved out of thin air to meet the occasion,
and that it is in reality the personal feelings of the survivors which are being
protected (cited in Georgia Lions Eye Bank v. Lavant 1985 and State v. Powell
1986). While a body may no longer belong to no one, Prosser says that these
property rights do not exist while the family member is alive, have no monetary
value, and can only be used for the purpose of burial. Referring to Prosser, the Court
of Appeals of Ohio in Carney v. Knollwood Cemetery Association (1986) outrightly
rejected the theory of quasi-property rights in the deceased more than a century after
Pierce and instead acknowledged the cause of action for mishandling of a dead body
as a subspecies of the tort of infliction of serious emotional distress. It still upheld
the jurys verdict awarding the decedents family $40,000 plus legal fees when
Katherine G. Mallisons remains were disturbed by a backhoe operator and dumped
21 A legal fiction is an assumption that certain facts exist, whether or not they really do exist, so that a
principle of law may be applied in order to achieve justice on the facts as they do exist. Application of
this doctrine frequently avoids undue delay in disposing of uncontroverted matters, permitting the
court to focus attention instead on matters that are in dispute (Gifis 1991:273).
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behind the cemetery in the process of digging another grave but it did so on the
basis of emotional distress, not a violation of a quasi-property right.
Legally, however, property is an abstraction considered to be a bundle of
rights and refers not to things, material or otherwise, but to rights or relationships
among people with respect to things. ... It consists of a number of disparate rights ...
the right to possess, the right to use, the right to exclude, the right to transfer
(Dukeminier and Krier 1993:86). Using this relational definition, the idea of a
decedents remains being quasi-property, then, isnt quite so reprehensible to the
sensibilities or humanity, except perhaps the consideration of a dead body as a
thing. But as noted in Chapter One, property isnt necessarily equated with
things, per se, but ones legal relationships to things. But when talking about
bodies, this is still a sticky subject. Even the Pierce (1872) court, while
acknowledging such rights to possession, attempted to mitigate any objectification of
the dead. The court stated that there is no right of property in a dead body, using the
word in its ordinary sense. Instead, it deemed the quasi-property interest to arise in
the duty the next of kin has in protecting the body from violation. In this sense, then,
perhaps it may be better to deem the dead trust res nullius (cf. Swain and Marusyk
1990 and Gottlieb 1998) held in trust by family members instead of quasi-
property. In this sense, rights to possession exist mainly because they are a means of
guaranteeing that the decedents wishes will be carried out by those most likely to
know and care about those wishes. Inherent in this thinking is a respect for
decedents former status as persons, complete with the right to make body-related
decisions autonomously (constrained, of course, by compelling state and public
policy interests).
Whether a quasi-property interest or a trust res nullius obligation, however,
there are times when a decedents requests are not implemented by those with the
legal power to do so, as exemplified in the case of Moyer (1978). When Thomas
Milton Moyer, a resident of Arizona, died while visiting his mother in Utah, he was
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buried in the Salt Lake City Cemetery instead of being cremated as dictated by his
will. The executor of Moyers will petitioned to have the body exhumed and
cremated, but the Supreme Court of Utah ruled that because of his failure to timely
act thereon, the executor should be deemed to have waived any right conferred in the
will to direct the disposal of the deceaseds remains and that he should remain buried
where he is. In this instance, Moyers executor failed in his responsibility and,
therefore, the interests of Moyers relatives to bury him prevailed.
It is perhaps no surprise then, as Judge Lumpkin continued in Wilson (1905),
that what death leaves behind can not be precisely brought within the letter of all the
rules regarding com, lumber, and pig-iron. Whether such interests are a type of
quasi-property or merely a respect for former persons, it appears that our rights as
human beings and citizens can, in a sense, extend beyond our natural lifespan. Even
though a persons constitutional rights terminate at death, the law sometimes gives
the impression of a continuation of rights. This is particularly so regarding statutory
law, which has, unlike the common law, created a cause of action for wrongful death.
Though the cause of action does not belong to the decedent but, rather, to the
surviving spouse, the minor children, or the estate, it does not exist until death has
occurred and, in some instances, it can survive well beyond the death of a person.
For example, rights of action may be asserted by an estate (e.g., In re A.C. 1990) and,
in the case of paternity suits, estates may be protected from dubious paternity claims
made after a fathers death for the sole purpose of inheritance (Estate of Sanders
1992). This may be so even when clear and convincing evidence of parentage may be
furnished by posthumous DNA analysis. Technology such as DNA-based paternity
testing has raised new questions for the courts and legislatures about such legal
advantages of the dead. In a petition for heirship in Estate of Sanders (1992), for
example, Christine S., as guardian ad litem for her daughter, argued that scientific
advances, particularly with genetic testing, have rendered our construction of [Probate
Code] section 6408, subdivision (c)(2), obsolete because these advancements have
69


removed the uncertainty of proving paternity in probate proceedings, which is the
justification for the restrictive nature of the statute. Regardless, the California
appellate court affirmed the trial courts refusal to order DNA tests of Raymond
Sanders surviving adult children. Similarly, the Supreme Court of New Yorks In
the Matter of the Estate ofJanis (1994) rejected a plea to exhume the decedents body
for the purpose of conducting DNA testing to prove that the decedent was the father
of an alleged non-marital child. Another New York court, like the court in Sanders,
punted the question ofposthumous DNA paternity testing to the legislature, even
though frozen blood samples of the decedent were available (In the Matter of Anne R.
1995).
So, regardless of our hesitancy to deem dead bodies things, it is easy to see
from these cases alone how bodies can be useful. And they are used constantly in our
society in a variety of ways. Dead bodies, in particular, can provide information
about an individuals cause of death, knowledge of human anatomy and disease,
organs for transplantation, or tissues for religious purposes or medical treatments.
And bodies have been used throughout history. In fact, Greek physicians sometimes
used human blood, tissues, and bones in medicinal remedies; the Romans arrested and
detained dead bodies for debt (Pierce v. Swan Point Cemetery 1872); and the Catholic
Church, as early as the first century, distributed the remains of saints as relics.
Medical schools and anatomists during the Renaissance in England, when interest in
human anatomy and the training of surgeons were on the rise, even created a black
market for cadavers particularly for the bodies of executed criminals and those
robbed from the graves of the poor (Lawrence 1998, Nelkin and Andrews 1998,
Porter 2001). And postmortems, during the professionalization of the coroners
inquest in the late-19th century, provided more than just a means to police
wrongdoings. The dead body became a useful tool in learning about pathology. It 22
22 For example, organ donation, because of advances in biomedicine, is another instance where courts
balance the legal advantages of the dead.
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was here, with the rise of what historian Ian A. Burney (2000) calls the mortuary-
court complex, that a legitimate state interest emerged that allowed the state to
assume custody of bodies that would otherwise belong to the next of kin. A
coroners legal possession of a body became necessary to ensure the body wasnt
tampered with before the cause of death could be determined.
This balance between the privilege of possession by the next of kin and the
legitimate interests of the state has, like familial disputes concerning burial rights,
also been defined by the courts. When the state lacks a legitimate interest in
performing an autopsy, similar to the burial cases cited above, the family generally
has a defendable legal interest to bury the body of a loved one in the same condition
that death left it. The unapproved autopsy is a mutilation, just as much as that caused
by the train that ran over poor Ida Phelps husband. According to Louisianas Fourth
Circuit Court of Appeals in Eastin v. Ochsner Clinic (1967),
an unauthorized autopsy is a tort giving rise to a cause of action for
damages; ... And, as we have said, the primary consideration is not the
extent of mutilation per se; it is the effect of the mutilation on the
feelings and emotions of those who have the duty of burial.
The Supreme Court of Florida, in Rupp v. Jackson (1970), also concluded that an
jo
unauthorized autopsy supports a tort action. Where a legitimate state interest
occurs, however, the state may temporarily detain a decedent and perform an autopsy
a reasonable search and seizure. An Ohio appellate court in Everman v. Davis
(1989), for example, ruled against Paul Evermans Fourth Amendment suit for 23
23 In the U.S. Court of Appeals for the Fifth Circuits Arnaud v. Odom (1989), however, where coroner
Dr. Charles Odom conducted unauthorized experiments on the bodies of infants Christina Arnaud and
Kendall Felix, the court denied the federal due process claims made by the parents because such
concerns may be satisfied by existing state tort remedies where negligent, episodic deprivations of
property rights by state officials occur. Thus, despite the egregious wrong suffered by the parents at
the hands of Dr. Odom in the instant case, no such liberty or privacy interest is created by the
Constitution.
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emotional distress when an autopsy was performed against his wishes on the body of
wife Dawn Everman after she was killed in an automobile accident. Though Paul
alleged there was sufficient information and evidence from police reports to conclude
that Dawns death was due to injuries sustained in the accident, the court concluded
that a coroner has a responsibility to determine the true cause of death and, thus, the
power to decide whether an autopsy is necessary. If one is, the court said, the coroner
is required by law to do so. While an autopsy does delay the burial of a decedent and,
consequently, interferes with a relatives possessory interest, a corpse may be held
for investigation in the legitimate interest of the state. In this situation, the states
interests trump the wishes of both decedent and next of kin, and the dissection of the
body is not equated with mutilation because it is the intent of the state to pursue a
compelling public interest.
This theme of intent recurs time and again throughout case law, whether in
regards to, inter alia, performing an autopsy, withdrawing medical treatment,
begetting a child, or creating a criminal DNA databank. As will be demonstrated
throughout this book, courts use intent balancing it against the risk of trumping
legal interests of both individuals and the state to help determine the path of the
law, particularly in cases involving body boundaries.
Like the autopsy situation, state interests also tend to prevail in cases where
organs have been removed from decedents for transplantation, even though the next
of kin typically has the authority to determine whether donation can occur. In
response to advances in transplantation technologies beginning in the 1950s,24 the
National Conference of Commissioners on Uniform State Laws approved the
Uniform Anatomical Gift Act (UAGA) in 1968 (amended in 1987), which codified
the next of kins power to transfer parts of bodies in their possession to others for
medical or research purposes, though prohibiting any person from knowingly, for
24 The first successful kidney transplantation occurred in 1954.
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valuable consideration, purchasing or selling a part for transplantation, therapy, or
reconditioning, if removal of the part is intended to occur after the death of the
decedent {Newman v. Sathyavaglaswaran 2002). With further scientific advances
and increased need for organs, however, the National Organ Transplantation Act
(1984) encouraged donation in order to close the sizeable gap between supply and
demand. As the Court of Appeals for the Ninth Circuit stated in Newman v.
Sathyavaglaswaran (2002):
Many perceived as a hindrance to the supply of needed organs the rule
implicit in the UAGA that donations could be effected only if consent
was received from the decedent or next of kin. ... In response, some
states passed presumed consent laws that allow the taking and
transfer of body parts by a coroner without the consent of next of kin as
long as no objection to the removal is known.
When amended in 1987, the UAGA, moreover, allowed for the removal of body parts
without consent where a reasonable effort has been made to locate the next of kin
and obtain consent to the transfer.
Several cases have upheld the constitutionality of state laws that allow for the
removal of a decedents organs, particularly corneas, when there axe no known
objections by relatives. For example, in Georgia Lyons Eye Bank v. Lavant (1985),
the Supreme Court of Georgia concluded that summary judgment should have been
granted by the lower court in favor of St. Josephs hospital and the eye bank that
removed comeal tissue from Patricia P. Lavants deceased infant. Lavant brought a
due process suit claiming wrongful removal of bodily tissue. A Georgia statute,
which the court explained was enacted by a virtually unanimous vote in 1978,
allows for the removal of comeal tissue if no objection is made by the decedent in
his life or by his next-of-kin after death. In its opinion that stated there is no
constitutionally protected right in a decedents body (cf. Arnaud v. Odom 1989,
supra, footnote 3), the court also noted that before the statute was passed only
73


approximately 25 corneal transplantations were carried out every year. But by 1984,
this number topped 1,000 per year thanks in large part to the consent statute.
Around the same time, a similar case was adjudicated in a neighboring state. The
Supreme Court of Florida in State v. Powell (1986) reviewed the constitutionality of a
1983 Florida statute that authorizes the removal of corneal tissue when an autopsy is
required by law, when the medical examiner knows of no objection from the next of
kin, and when the tissues removal will not interfere with the cause-of-death
investigation. Ruling the statute constitutional, the court noted that an autopsy is a
surgical dissection of the body; it necessarily results in a massive intrusion into the
decedent. ... [Cjomea removal, by comparison, requires an infinitesimally small
intrusion which does not affect the decedents appearance. With or without cornea
removal, the decedents eyes must be capped to maintain a normal appearance. It
then concluded that the statute reasonably achieves the permissible legislative
objective of providing sight to many of Floridas blind citizens.
On the other hand, the Court of Appeals for the Sixth Circuit overturned a
lower courts dismissal of Deborah Brothertons tort and due process claims after
Hamilton County coroner Dr. Frank Cleveland removed the corneas of her husband,
Steven, against her objection. The court ruled that Brotherton has a protected
property interest in her husbands corneas and that her due process claim was valid
because she had been deprived of property under color of state law (Brotherton v.
Cleveland 1991). In citing related cases, however, the court reaffirmed the caveat
that such interest amounts only to quasi-property. Similarly, the District Court of
Kansas supported the next of kins quasi-property interests in a decedent in Perry v.
St. Francis Hospital (1995), though it rejected the Perrys breach of contract claim
after the hospital removed more tissue from the body of Kenneth Perry than the
family had authorized in the consent form. But here again, a state interest and the
belief that bodies arent for sale prevailed. According to Judge Crows opinion,
the plaintiffs breach of contract claim amounted to an effort to force a square peg
74


into a round hole. ... The consent form simply memorializes their consent to donate.
It does not purport to set forth any particular rights and duties. And in finding no
recoverable damages despite the Perrys valuation of the body at $22,701, Crow
concluded that a contract approach to organ and tissue donation is not reconcilable
with societal beliefs and values on this subject. ... The general rule is that a dead
body has no pecuniary value to the surviving next of kin.
Though it may seem that a legal decision regarding the body depends on the
whimsy of the court, these cases depict how a court balances competing interests to
determine which partys legal advantages trump the others. An individuals
possessory interests in a decedents organs sometimes does trump the publics
interests. Unlike the organ cases just described but similar to the Lavant (1985),
Powell (1986) and Arnaud (1989) courts, the Court of Appeals for the Eighth Circuit
in Fuller v. Marx (1984) relied on an Arkansas statute to protect Leda Fullers quasi-
property interests in the body and organs of her husband, Thomas, after state medical
examiner Dr. Stephen Marx disposed of Thomas organs following an autopsy. The
court concluded: we note that under Arkansas law Mrs. Fuller could have taken
possession of her husbands organs if she had made a written request.25 The court
threw out, however, Fullers claim that she had a constitutionally protected property
interest in her husbands organs. This hesitancy to decide such actions involving the
interference of dead bodies in the name of constitutional rights is also present in
Michigans Court of Appeals case, Tillman v. Detroit Receiving Hospital (1984).
Citing Roe v. Wade (1973), the right of privacy, so said the Michigan court,
encompasses the right to make decisions concerning the integrity of ones body. ...
This right is, however, a personal one. It ends with the death of the person to whom it
is of value. It may not be claimed by his estate or his next of kin.
25 Fuller v. Marx (1984) is also interesting because Thomas Fuller was incarcerated in an Arkansas
prison when he died. Though his body belonged to the state when he was alive, it (and, at some
level, his organs) belonged to his wife, Leda, when he died. Death altered the possessory rights in
Fullers body.
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Regardless of whether a relatives claims against interference with a
decedents body are recognized by state or federal law, courts have routinely been put
in the position of balancing individuals interests and legitimate state interests in dead
bodies because the explosion of research and information concerning biotechnology
has created a market place in which human tissues are routinely sold to and by
scientists, physicians and others (Brotherton v. Cleveland 1991). But this explosion
of biotechnology also has created new legal issues regarding the refusal of medical
treatment. As science has prolonged life beyond its natural boundaries in the form
of mechanical breathing and artificial nutrition and hydration, the medical
communitys oath to provide care while doing no harm has become increasingly
problematic. Subsequently, the courts have been forced to occupy a new position by
the bedside of patients, often crowded alongside family members and medical
professionals. Called upon to determine the legitimate legal advantages of dying
patients as patients have gained greater decision-making power, the law has been
forced to draw lines and create definitions about the meaning of death a subject
previously left to the jurisdiction of medicine and religion and these disciplines
practitioners. Judges have answered the call regarding the rights of both competent
and incompetent patients in a consistently reasoned way, including deliberating the
distinctions of ordinary versus extraordinary care as well as balancing individual
rights of privacy, liberty, and self-determination against the states four legitimate
interests in preserving life, preventing suicide, protecting innocent third parties, and
maintaining the ethical integrity of the medical profession. Added to these
fundamental interests are also a patients quality of life and the utilitarian goal of
protecting the publics health. Not only have courts weighed these legitimate but
oftentimes competing interests, they also have had to determine how the status of a
patient competency factors into the balance.
While the dead, as illustrated in the discussion above, are frequently
objectified and fragmented bodies not quite property but no longer persons the
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dying are persons caught between phases, in a process that straddles the nebulous
boundary between life and death. Once left to the experience and judgment of
seasoned physicians, the power to refuse or cease medical treatment blossomed in the
second half of the 20th century, especially in the wake of unethical medical
experimentation that used human subjects in the Second World War and the
adjudication of watershed informed consent cases Canterbury v. Spence (1972) and
Cobbs v. Grant (1972). But the foundation of informed consent based on an
inherent right to bodily integrity stems from before the turn of the century. Since
the decision in Union Pacific Railway Company v. Botsford (1891), where the railway
unsuccessfully petitioned the courts for an order requiring plaintiff Clara L. Botsford
to submit to a surgical examination to provide a correct diagnosis of the injuries she
sustained after a berth fell on her head, the Supreme Court of the United States has
held no right to be more sacred or more carefully guarded, by the common law, than
the right of every individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear and unquestionable
authority of law. Authoring the opinion of the court, Justice Gray further concluded,
citing Judge Cooley from Cooley on Torts: The right to ones person may be said to
be a right of complete immunity: to be let alone. The Court of Appeals of New York
reaffirmed the Supreme Courts ruling that the inviolability of the person is as much
invaded by a compulsory stripping and exposure as by a blow (Union Pacific
Railway Co. v. Botsford 1891) in its 1914 case, Schloendorff v. Society of the New
York Hospital. Like the Botsford court, the Schloendorff opinion authored by Judge
Cardozo emphasizes that non-emergency surgery performed without the patients
consent is more than mere negligence it is trespass and assault, for which a
surgeon is liable in damages. Both of these pivotal cases created a precedent in this
right to bodily integrity and, thus, the power to refuse to bare ones body or submit it
to the touch of a stranger. The doctrine that such consent must be informed, however,
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was still a half a century away. Nevertheless, since Botsford, case law has reiterated
this right to be let alone.
As with any right, of course, the right to be let alone is not absolute. It must
be weighed against the states interests, often recounted by courts as duties to (1)
preserve life, (2) prevent suicide, (3) protect innocent third parties, and (4) maintain
the ethical integrity of the medical profession. One court has added a fifth item to
this list to encourage the charitable and humane care of those whose lives may be
artificially extended under conditions which have the prospect of providing at least a
modicum of quality living (McKay v. Bergstedt 1990; see also In the Matter of
Visbeck 1986). This factoring of quality of life within the reasoning of a legal
judgment, however, has brought caveats from other courts because a competent
persons common-law and constitutional rights do not depend on the quality or value
of his life (In the Matter of Conroy 1985). Though not explicitly spelled out in this
list of legitimate state interests, the state also has a right to protect the publics health
in the name of the greater good. Such a utilitarian interest outweighs the rights of the
individual when the benefit to society as a whole outbalances the costs to the
individual. The Supreme Courts Jacobson v. Massachusetts (1905) illustrates this
principle, as it upheld a compulsory vaccination statute aimed at preventing the
spread of smallpox in the name of the publics health and safety. The court
recognized the police power of the state to enact quarantine and other health-related
laws, despite Jacobsons assertion that vaccination, as a bodily intrusion, wasnt
without risks to his health. But the court relied on expert testimony that for nearly a
century most of... the medical profession have regarded vaccination ... as a
preventive of smallpox, and that the risk of such an injury [was] too small to be
seriously weighed as against the benefits coming from the discreet and proper use of
the preventive. Other examples of the legitimate and utilitarian trumping of
individual rights for the sake of the greater benefit have already been depicted in this
chapter and will emerge again in subsequent chapters (e.g., the states power over
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autopsies, the removal of corneal tissue, burial of the dead, the disposal of biowaste
from surgeries, and the collection of DNA samples for military and criminal
identification databanks).
The legitimacy of the state is not always without its biases, however.
Recalling Mary Douglas (1978) caveat that a societys rules and mores arent always
congruent, one case in which the states actions may be questioned is the Court of
Appeals for the Tenth Circuits Reynolds v. McNichols (1973). In this case, the
appellate court affirmed the trial courts conclusion that authorizing limited
detention in jail without bond for the purpose of examination and treatment for a
venereal disease of one reasonably suspected of having a venereal disease by virtue of
the fact that she has been ... charged with solicitation and prostitution is a valid
exercise of the police power. When Roxanne Reynolds brought this suit in which
she claimed a violation of her Fourth Amendment right to be secure in her person, she
also raised the issue that the ordinance only applied to females. Even though the
court admitted that, when she was arrested, there was evidence that Reynolds had had
sex with her male customers, the court concluded that the ordinance was aimed at
the primary source of venereal disease and the plaintiff, being the prostitute, was the
potential source, not her would-be customer. In most places, however, soliciting a
prostitute is a crime and such customers often return home to spouses and
companions who dont know about the risks to which they are being exposed.
But there is no better example of societal biases finding their way into case
law than the Supreme Courts Buck v. Bell (1927). The Eugenics Movement in the
early decades of the 20th century that provided fertile ground for one of the most
egregious cases adjudicated in the name of the greater good when Justice Oliver
Wendell Holmes upheld the compulsory sterilization of the feeble-minded
because, as he wrote, [tjhree generations of imbeciles are enough {Buck v. Bell
1927).
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But when state interests do not tip the balance in favor of society-at-large and
private decisions do not adversely affect others, the individuals rights to privacy,
liberty, and self-determination are routinely upheld in the common law. Before
examining examples from actual cases, however, a few words must be said about
these three rights and how they form a legal foundation that recognizes the bioethical
tenet of autonomy. Though not explicitly granted in the Constitution, courts have
consistently recognized the right to privacy as existing in the penumbras of the Bill of
Rights and the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The right to
privacy also has developed within the common law, as courts have adjudicated
statutes protecting a variety of individual interests from governmental intrusion. This
right took distinct shape in United States Supreme Court decisions in the 1960s
[jzc] (Hill v. National Collegiate Athletic Association 1994), after which emerged
significant decisions regarding informed consent, abortion, and the withholding or
withdrawal of medical treatments. But the origin of a common-law recognition of
privacy is often traced to a Harvard Law Review article in 1890 by Samuel D. Warren
and Louis B. Brandeis, in which they concluded that tort law conferred a protection
of, not only property, but also what they deemed inviolate personality the right
of determining, ordinarily, to what extent [a persons] thoughts, sentiments, and
emotions shall be communicated to others (Hill v. National Collegiate Athletic
Association 1994). In Olmstead v. United States (1928), Brandeis also further
recognized this right within the bounds of the U.S. Constitution. Botsfords right to
be let alone was, thus, a right to privacy protected by both constitutional and
common law.
Privacy, moreover, is legally described in two ways: as informational privacy,
or a right to avoid disclosure of personal matters, and as autonomy privacy, or a right
to make important decisions. In a California Law Review in 1960, Dean Prosser
reexamined tort law, as Warren and Brandeis had done, and recorded four types of
torts associated with the invasion of privacy: (1) intrusion into private matters; (2)
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public disclosure of private facts; (3) publicity placing a person in a false light; and
(4) misappropriation of a persons name or likeness (cited in Hill v. National
Collegiate Athletic Association 1994).26
Liberty, though similar, is different from privacy. The Supreme Court of
Nevada, for example, based its decision recognizing a 31-year-old quadriplegics
right to remove a respirator on a right to liberty under both the federal and Nevada
constitutions (McKay v. Bergstedt 1990). While the right to privacy that is invoked in
many of these refusal of medical treatment cases stems from the Fourth Amendments
protection of the security of persons, houses, papers, and effects from governmental
intrusion without probable cause, liberty interests come from the Fourteenth
Amendments Due Process Clause that no one shall be deprived of life, liberty, or
property, without due process of law and its Equal Protection Clause that no state
shall deny to any person within its jurisdiction the equal protection of the laws.
According to the Supreme Court in Planned Parenthood of Southeastern
Pennsylvania v. Casey (1992), the guaranties of due process, though having their
roots in Magna Cartas 'per legem terras and considered as procedural safeguards
against executive usurpation and tyranny, have in this country become bulwarks
also against arbitrary legislation. The Court in Washington v. Glucksberg (1997)
further noted that the liberty the Due Process Clause protects includes more than the
absence of physical restraint. Liberty under the law, the Court also once said in
Bolling v. Sharpe (1954), extends to the full range of conduct which the individual is
free to pursue, and it cannot be restricted except for a proper governmental
objective. And in the same year as Schloendorjf, the Supreme Court defined liberty
as a citizens right to use his powers of mind and body in any lawful calling (Smith
v. Texas 1914).
26 This chapter, of course, deals with Prossers first type. See Chapter Eight, The Informational
Body, for analysis of cases involving the remaining three.
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Though different, liberty and privacy are often used interchangeably and both
imply a fundamental right of self-determination subject only to the states
compelling and overriding interest {In re Guardianship of Browning 1990).
In essence, then, privacy, liberty, and self-determination form the basis of a
legal recognition of personal autonomy. Several courts have even referred to
philosopher John Stuart Mills On Liberty, first published in 1859, for an explication
of individual autonomy and when it may be encroached upon by society: The only
part of the conduct of any one, for which he is amenable to society, is that which
concerns others. In the part which merely concerns himself, his independence is, of
right, absolute. Over himself, over his own body and mind, the individual is
sovereign (cited in In re Gardner 1987). It is no surprise, then, that autonomy is the
first of four tenets set forth by the discipline of bioethics or that the right to make
significant personal decisions free from intrusion is at the crux of cases involving
competent and incompetent patients refusing medical care, whether for religious
reasons or near the end of life. The following pages examine how courts have
decided the legal interests of competent patients who refuse life-saving or life-
prolonging treatments. Chapter Five, inter alia, will consider this topic in relation to
legally incompetent patients, including the formerly competent (often those in
persistent vegetative states), the potentially competent (minors), and those who have
never been competent. Though the discussion of the dying body begins here, a
complete picture of the boundaries defining our legal advantages when it comes to
refusing medical care cannot be painted in isolation from the following chapter.
Courts have progressively identified the right to privacy in relation to the
dying body over the course of several cases beginning in the 1960s involving the
power of competent Jehovahs Witnesses to refuse blood transfusions. While the
U.S. District Court for the District of Connecticut concluded in United States v.
George (1965) that the government could compel Elishas George to submit to blood
transfusions in order to save his life, such thinking would quickly change. In
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Georges case, he had been admitted to the Veteran Administration hospital for the
treatment of a bleeding ulcer. When the bleeding reached a point that doctors
believed risked shock and death, the court ruled that the preservation of life and the
protection of the integrity of the medical profession outweighed Georges religious
freedom. According to Judge Zampano:
In the difficult realm of religious liberty it is often assumed only the
religious conscience is imperiled. Here, however, the doctors
conscience and professional oath must also be respected. In the present
case the patient voluntarily submitted himself to and insisted upon
medical care. Simultaneously he sought to dictate to treating
physicians a course of treatment amounting to medical malpractice. To
require these doctors to ignore the mandates of their own conscience,
even in the name of free religious exercise, cannot be justified under
these circumstances. The patient may knowingly decline treatment, but
he may not demand mistreatment.
This ruling was a far cry from BotsforcT s recognition of bodily integrity and the right
to be let alone.
In the same year as George, however, the Supreme Court of Illinois In re
Estate of Brooks (1965) allowed Bernice Brooks to forgo medically advised blood
transfusions. The court concluded Brooks knew full well the risks involved and that
her actions didnt offer any clear and present danger to society. Judge
Underwoods opinion stated: Even though we may consider appellants beliefs
unwise, foolish or ridiculous, in the absence of an overriding danger to society we
may not permit interference therewith ... in the waning hours of her life. But in
Brooks, no minor children were involved, and the court did not have to consider the
states right to protect innocent third parties.
The Supreme Court of New Yorks In the Matter of Winthrop University
Hospital (1985), on the other hand, ruled that the states parens patriae power could
outweigh a competent adults ability to refuse treatment for religious reasons. The
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parens patriae doctrine refers to the role of the state as sovereign and guardian of
persons under legal disability (Gifis 1991:341), and the court concluded that the
state, as parens patriae, will not allow a parent to abandon a child, and so it should
not allow this most ultimate of voluntary abandonments. The patient had a
responsibility to the community to care for her infant. Thus the people had an interest
in preserving the life of this mother.
While other courts have acknowledged this reasoning in cases where the adult
is a single parent, the states interest in protecting third parties often is outweighed in
cases where a spouse or other guardians are present, even if minors will be relegated
to single-parent households (see In the Matter of Osborne 1972, In the Matter of
Farrell 1987, Public Health Trust of Dade County v. Wons 1989). The Supreme
Judicial Court of Massachusetts case of Norwood Hospital v. Munoz (1991), for
example, agreed that the court could not mandate a two-parent, rather than a one-
parent, family. Thus, there is a balance in cases of competent adults refusing care
between protecting the individuals legal advantages and the states rights to protect
life and innocent third parties.
Much more interesting in the Norwood case, however, is Judge OConnors
dissent equating the right to refuse treatment with a right to assisted suicide calling
into question the states rights to prevent suicide and to maintain the ethical integrity
of the medical community. Courts have repeatedly had to face this distinction, most
notably in cases involving the removal of life-supporting treatment from both legally
competent and incompetent patients. In determining whether the cessation (or the
application) of certain medical technologies amounts to suicide, most courts have
examined the intent of both patient and practitioner and have not typically concurred
with Judge OConnors conclusion in Norwood.
Even when not based partly on First Amendment rights of religious freedom,
courts have affirmed the right to privacy in refusing medical treatment. Two
amputation cases illustrate this line of reasoning based in large part on the
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watershed Supreme Court of New Jerseys In the Matter of Quinlan (1976) that will
be discussed in the next chapter but they also highlight how courts use a cost-
benefit risk analysis that weighs the extent of bodily invasion with the patients
medical prognosis. Inherent in this risk analysis is also a consideration of a patients
intentions. Similar to the Jehovahs Witnesses in the cases described above, many
patients who wish to forgo treatment do not intend to die or cause their deaths. In
Lane v. Candura (1978), for instance, an appeals court in Massachusetts allowed
Rosaria Candura to refuse the amputation of her gangrenous leg and foot, even
though doing so may be regarded by most as unfortunate. Similarly, a probate
court in New Jersey did not compel the amputation of both of Robert Quackenbushs
legs, potentially above the knee, even though forgoing amputation certainly risked
death. Referring to the extreme bodily invasion required by the surgery and citing
Quinlan, the court said: The extent of the bodily invasion required to overcome the
States interest is not defined in Quinlan. Further, there is a suggestion [in Quinlan]
of a need for a combination of significant bodily invasion and a dim prognosis before
the individuals right of privacy overcomes the States interest in preservation of life
(In the Matter of Quackenbush 1978). The amputation of Quackenbushs legs would
have been a significant bodily invasion, confining the 72-year-old to a wheelchair and
a musing home, even though the operation itself was minimally risky.
Even when a treatment is sufficiently considered a bodily invasion by the
courts, this is not always the deciding factor. Two examples, though not typically
that case in treatment-refusal disputes, depict how a patient who is an inmate and in
the custody of the state can be compelled to undergo medical treatment. The
Supreme Judicial Court of Massachusetts in Commission of Correction v. Myers
(1979), though it acknowledged that hemodialysis is more than minimally intrusive
and that this would normally outweigh the states interests in preserving life and
protecting the integrity of the medical profession, authorized such treatment in the
interest of maintaining prison order and security. A Pennsylvania court in
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Commonwealth v. Kallinger (1990) reached the same conclusion when it allowed a
nasogastric tube to be inserted into inmate Joseph Kallinger who wished to starve
himself to death. The court admitted that the tube was a risky and intrusive
procedure, but it found that the state had a legitimate interest in maintaining prison
security and the health and welfare of the prisoners in its custody. Additionally, the
court said, the state has a right to prevent suicide in this instance that even outweighs
a free citizens right to self-determination (see infra).
The ruling regarding compelled nourishment was radically different, however,
in the Supreme Court of Californias case of Thor v. Superior Court of Solano County
(1993). When inmate Howard Andrews, a quadriplegic requiring assistance with all
bodily functions, wished to starve himself, the court noted that Andrews condition
is irreversible and concluded that in the absence of evidence demonstrating a threat
to institutional security or public safety, prison officials ... may not deny a person
incarcerated in state prison this freedom of choice. Andrews condition was
radically different from Kallingers, though their intentions were ultimately the same
(i.e., to cause death through starvation). It may be argued, however, that the former,
like Myers, wished to cease medical treatments keeping him alive, while the latter, a
healthy individual, wanted to specifically cause his own death. Looked at in this
light, the Thor court relied on the intentions of Andrews to guide its decision. But,
then, how does this explain Myersl While inmate cases often seem to be
anomalies, courts also consider the risks involved the prognosis part of the
equation. In Kallingers case, forced feeding via a tube was less risky,
philosophically and pragmatically, than letting him starve to death, and it would keep
him alive. The same technology also would do so in Andrews case but it seems
the court drew the conclusion here (whether accurate) around the extent of Andrews
suffering. If his suffering in his current state was truly unbearable, the court could
not risk violating Andrews individual interests in the name of the prison or the state.
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The Myers court simply elevated the risks to prison security above the risks of
hemodialysis or intruding on an individuals right to be let alone.
Setting these inmate cases aside, the right to refuse life-saving treatment,
when not outweighed by the states interests, has been allowed as an execution of
ones autonomy. Since the 1970s, it also has been protected by the doctrine of
informed consent. But informed consent requires that the patient sufficiently
understands the necessary medical information involved and can evaluate the risks of
treatment versus non-treatment. A New England Journal of Medicine article in 1984
laid out the three prerequisites of informed consent: The patient must have the
capacity to reason and make judgments, the decision must be made voluntarily and
without coercion, and the patient must have a clear understanding of the risks and
benefits of the proposed treatment alternatives or nontreatment, along with a full
understanding of the nature of the disease and the prognosis (cited in In the Matter
of Conroy 1985). Thus, even when refusal of medical care may be foolish or
irrational from one perspective, a properly informed patient may still choose this path.
(Whether true informed consent may be achieved is another matter that will be
discussed later.)
Similar to the Quinlan courts rationale, bodily invasion and prognosis also
play key roles in cases involving the rights of competent patients in disabling
respirators and ventilators and removing surgically inserted hydration and feeding
tubes. Most courts agree that life-sustaining technologies are intrusive; the more
intrusive the procedure, the less likely a court will overrule the patients decision to
forgo treatment. As a patients prognosis dims, moreover, courts tend to consider the
patients extent of suffering and, thus, his quality of life. In Satz v. Perlmutter (1980),
for example, the Supreme Court of Florida concluded that not allowing Abe
Perlmutter, a 73-year-old man with amyotrophic lateral sclerosis (ALS), to turn off
his ventilator simply prolonged his suffering from a terminal condition. The court
based its decision on Perlmutters right to privacy and self-determination as well as
87


the fact that he did not self-induce his horrible infliction (and, thus, refusing
treatment was not equated with suicide). A superior court in New Jersey held
similarly for Beverly Requena, a 55-year-old woman with ALS who refused to allow
doctors to insert a nasogastric tube. The court determined that a decent life is not
hers to have.... It is simply not wrong in any sense for this good woman to want
relief from suffering. ... [L]iving people become dying people, and those people must
be dealt with in a way that fully respects their dignity (In the Matter of Requena
1986). And the Supreme Court of New Jerseys In the Matter ofFarrell (1987)
drives home this point. Kathleen Farrell, also suffering from ALS, died shackled to
the respirator as the court was deliberating her case. In an uncommon move, one
court even explicitly considered a patients quality of life in its decision. The Nevada
court in McKay stated that as the scientific community continues to increase human
longevity and promote the greying [szc] of America, prospects for slipping away
during peaceful slumber are decreasing. And for significant numbers of citizens like
Kenneth, misfortune may rob life of much of its quality long before the onset of
winter. This may be a risky road itself, however. According to the Supreme Court
of New Jersey, there are risks involved in determining a persons legal interests on
the quality or value of his life (In the Matter of Conroy 1985), as doing so may lead
to flagrant infringements of a persons constitutional and common-law rights (e.g.,
Buck v. Bell 1927). This is particularly so for formerly competent patients and
incompetent patients (see Chapter Five), though such infringement may also happen
to those who are competent. This may have been the case in the Thor decision
described above or, in a different sense, in a New Jersey superior courts In the
Matter of Visbeck (1986), when the judge allowed a hospital to implant a feeding tube
into a 90-year-old stroke patient who entered the hospital competent but subsequently
became unable to give her consent. Judge Stanton concluded that although I would
choose non-treatment for myself if I were in Mrs. Visbecks position ... I would not
impose that choice on another, or allow that choice to be imposed upon another,
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because I recognize that the quality of Mrs. Visbecks life at present is sufficiently
high to make the withholding of feeding by tube unacceptable to many responsible
and caring people.
Competent patients with non-terminal illnesses also have protected rights to
privacy and self-determination. For instance, though William Bartling, a 70-year-old
man with a lung tumor, did die unexpectedly during the court proceedings, a court of
appeals in California equated the hospitals refusal to remove a ventilator with battery
{Bartling v. Superior Court of Los Angeles 1984). The court partially relied on
Californias Natural Death Act, which permits terminal patients to refuse life-
sustaining treatment. Other cases involving non-terminal, competent patients, such as
Bouvia v. Superior Court of Los Angeles (1986) and State v. McAfee (1989), have
been decided similarly on the basis of privacy. In Bouvia, Elizabeth Bouvia, a 28-
year-old with cerebral palsy, petitioned the court for the power to remove a
nasogastric tube supplying her with nutrition and hydration. The court granted her
relief. The majority opinion concluded:
Here, if force fed, petitioner faces 15 to 20 years of a painful existence,
endurable only by the constant administrations of morphine. Her
condition is irreversible. There is no cure for her palsy or arthritis.
Petitioner would have to be fed, cleaned, turned, bedded, toileted by
others for 15 to 20 years! Although alert, bright, sensitive, perhaps even
brave and feisty, she must lie immobile, unable to exist except through
physical acts of others. Her mind and spirit may be free to take great
flights but she herself is imprisoned and must lie physically helpless
subject to the ignominy, embarrassment, humiliation and dehumanizing
aspects created by her helplessness. We do not believe it is the policy of
this state that all and every life must be preserved against the will of
the sufferer. It is incongruous, if not monstrous, for medical
practitioners to assert their right to preserve a life that someone else
must live, or, more accurately, endure, for 15 to 20 years. We cannot
conceive it to be the policy of this state to inflict such an ordeal upon
anyone.
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In McAfee, quadriplegic Larry McAfee requested both the disconnection of his
ventilator and a sedative to ease the pain of death. The prescription of the sedative in
the McAfee case raised concern for the Supreme Court of Georgia, because
dispensing the sedative bordered on sanctioning his choice to let nature take its
course. Regardless, the high court upheld McAfees request on the grounds that the
intent of the drug was merely palliative and in no way would cause or accelerate his
death.
Intent has played a large role in whether medical practitioners and hospitals
will be held liable in the deaths of their patients following treatment cessation.
Initially a legitimate concern for the medical profession, courts have regularly held
that the intention of such actions isnt to cause death but merely to allow life to take
its natural course while respecting the wishes of the patient or, in cases of formerly
competent patients (see Chapter Five), the familys execution of those wishes. The
intention of treatments related to the principle of double effect and the
intentions of patients wishing to withhold or cease life-sustaining treatment have,
therefore, become key factors that courts weigh in these cases.
The principle of double effect prevents incrimination of a physician who
prescribes a level of treatment that is necessary to alleviate a patients pain but also
happens to be fatal, because his intends to treat, not to kill. In Justice OConnors
concurring opinion in Washington v. Glucksberg (1997), for example, she notes that
a patient who is suffering from a terminal illness and who is experiencing great pain
has no legal barriers to obtaining medication, from qualified physicians, to alleviate
that suffering, even to the point of causing unconsciousness and hastening death.
There is a difference, moreover, the Supreme Court of Michigan said in People v.
Kevorkian (1994), between misfeasance and nonfeasance: The reason for the
distinction is said to lie in the fact that a defendant creates a new risk of harm by
misfeasance, but merely fails to benefit another by nonfeasance. Using this line of
reasoning, it also could be argued that forced treatment in cases like Requena (1986)
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and Farrell (1987) is a form of misfeasance by prolonging a competent patients
suffering or even by interfering with dignity and independence at the end of life. So,
regarding the principle of double effect, intent is best understood as the guiding
factor, particularly when a patient wishes to forgo medical treatment.
Intent also has been crucial in determining legal culpability in cases of
assisted suicide, where antidysthanasia the removal of life support from incurable
patients has been differentiated from euthanasia the unnatural termination of a
patients life (In the Matter of Colyer 1983). With few exceptions, legislatures and
courts have consistently upheld the states interests in preserving life, preventing
suicide, and protecting the ethical integrity of the medical profession over individual
interests when medical intervention or non-intervention intends to cause death (rather
than being just a corollary of double effect). Unlike those who withhold or withdraw
treatment for reasons other than causing death, those who aid another in a suicide
attempt have regularly faced criminal prosecution.27 In an early murder trial where
assisted suicide was used as a defense, for example, the Supreme Court of Ohio in
State v. Blackburn (1872) held that John S. Blackburn was guilty of murdering Mary
Jane Lovell when he administered poison with the intent to cause her death. The
court said that it is immaterial whether the party taking the poison took it willingly,
intending thereby to commit suicide, or was overcome by force, or overreached by
fraud. True, the atrocity of the crime, in a moral sense, would be greatly diminished
by the fact that suicide was intended; yet the law, as we understand it, makes no
discrimination on that account. The Supreme Court in Michigan reached the same
conclusion five decades later in People v. Roberts (1920): We are of the opinion
that when defendant mixed the paris green with water and placed it within reach of
his wife to enable her to put an end to her suffering by putting an end to her life, he
27 The Hippocratic Oath includes: I will follow that method of treatment which, according to my
ability and judgment, I consider for the benefit of my patients. ... I will give no deadly medicine to
anyone if asked (cited in Bolivia v. Superior Court of Los Angeles County 1986).
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was guilty of murder. ... By this act he deliberately placed within her reach the means
of taking her own life. (See also State v. Sexson [1994] affirming defendant Billy
Leroy Sexson, Jr.s conviction of second-degree murder in the death of his wife.) A
flurry of similar right-to-die cases emerged in the 1990s, particularly when Dr. Jack
Kevorkian and others challenged state statutes proscribing assisted suicide. But the
Supreme Court of Michigan upheld that states law in People v. Kevorkian (1994), as
did the Supreme Court of Florida and that states statute in Krischer v. Mclver (1997).
The Supreme Court of the United States also has weighed in on the subject, holding a
Washington state statute criminalizing the act of knowingly causing or aiding another
to attempt suicide constitutional (Washington v. Glucksberg 1997). In Vacco v. Quill
(1997), moreover, the Supreme Court concluded there was no violation of equal
protection in a similar New York statute because, while everyone has a right to refuse
treatment, no one has a right to assisted suicide.
Time and again, courts have examined the nations long-standing aversion to
suicide, unwilling to deem it a fundamental liberty interest, particularly when
preventing suicide is a reasonable promotion and protection of legitimate state
interests. This is especially true when individuals are incarcerated and have subjected
themselves to the custody of the state. As the Supreme Court of New Hampshire has
emphasized, [p]risoners are not permitted to live in accordance with their own
desires, nor may they be permitted to die on their own terms without adversely and
impermissibly affecting the States legitimate authority over inmates (In re Caulk
1984). In the Caulk case, the court therefore allowed the insertion of a nasogastric
tube when inmate Joe Caulk refused to eat. The court cited the states rights to
preserve life and prevent suicide, particularly when an inmate isnt suffering from a
terminal illness or when his actions substantially interfere with orderly prison
administration. This line of reasoning allowing state interests to abridge inmates
rights to privacy has even sanctioned compelled treatment in several cases
involving prisoners attempting to starve themselves to death, including In the Matter
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