Inspiring a Medico-Legal Revolution

Essays in Honour of Sheila McLean

Pamela R. Ferguson, Graeme T. Laurie

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781472434289
• eBook ISBN:
  9781317115953
• Topic: Medicine
• Subtopic: Law Theory & Practice

This book marks the retirement of Professor Sheila McLean, whose contribution to the discipline of medical law has been truly ground breaking. As one of the pioneers of the discipline, Sheila McLean inspired a revolution in the ways in which lawyers, doctors, courts and patients perceive the relationship between medicine and the law. The first International Bar Association Professor of Law and Ethics in Medicine, she has worked tirelessly to champion the importance of law's role in regulating medicine and protecting patients' rights. The span in content of this book reflects the range of contributions that Professor McLean has herself made. Her work gave direction and shape to a new field of study at a time when few questioned the authority of medicine or thought much about the plight of the patient. This collection brings together 21 leading scholars in healthcare law and ethics to honour the depth and significance of her contribution. Including authors from the US, Australia, Canada and New Zealand, the contributions cover areas as diverse as start and end of life, reproductive rights and termination of pregnancy, autonomy of patients, the protection of vulnerable patient groups, and the challenges posed by new technologies.

PART I
Issues at the Beginning of Life

Chapter 1
Reproductive Health and the Law

Rebecca J. Cook and Bernard M. Dickens

Introduction

The chapters contributed to this book in tribute to Sheila McLean show how widely, indeed comprehensively, her scholarship and career have spanned and enriched the field at first modestly known as medical law, now often more ambitiously described as health law and policy. Sheila’s career vindicates this description, since she has not only advanced legal scholarship through her own writing and in sponsoring and inspiring writing by others, but has also contributed to national governmental, Scottish governmental and international and non-governmental organiation policy-making and advisory agencies. The books she has written, edited and to which she has contributed chapters cover the spectrum of human life, from assisted reproduction to end-of-life care, from choosing children to assisted suicide, and many areas of concern in between, both immediate, such as the right to life, and more prospective, such as xenotransplantation. In this chapter, we draw upon Sheila’s contributions to the advance of reproductive health law and policy, and the integration of modern perceptions of bioethics. There are different explanations of the rise of bioethics,¹ but an observer of and participant in this rise, Warren Reich, has recorded that:

Fertility control was the major issue that spawned bioethics, more than any other single issue – certainly more than any high-technology-related issue in medicine. It was an issue that directly affected hundreds of millions of people; it dealt with quintessentially human suffering and fulfillment … involving ethical, religious, legal, and social controversy on the levels of social policy as well as personal ethics and ecclesiastical authority. The theologians, who were the first ethicists working in bioethics, cut their teeth on contraception/sterilization and abortion debates; and in a very real sense, much of the great energy that was turned toward bioethics around 1970/71 was energy that was diverted from the then-increasingly futile [Roman Catholic] church debates on fertility control.²

From 2000 to 2006, Sheila was a member, among many other activities, of the Committee for the Study of Ethical Aspects of Human Reproduction and Women’s Health (The Ethics Committee) of the International Federation of Gynaecology and Obstetrics (FIGO). One of us (RJC) was a founding member of this committee in 1985, serving until 1994, and the other joined the Committee in 2003, and will chair it from 2009 to 2015. As predecessors to, colleagues in, and inheritors of Sheila’s contributions to the Committee’s work, we want to reflect on how this aspect of her scholarship and guidance illuminates the challenges and prospects for advancement in the reproductive health of populations in general, and of women in particular.

The field has been energised not only by Sheila’s intellect, analytical rigor and wisdom, but also by her adventurous and vivacious personality. One of us (BMD) will long retain the memory, following an unusually exotic November 2005 FIGO Ethics Committee meeting in Luxor, Egypt, of driving with her into the Valley of the Kings and entering the tomb of Tutankhamen just hours after concluding ethical recommendations on confidentiality and privacy, human cloning and embryo research. This juxtaposition of consideration of a classical past, the pressing present and what may come in the future is an epitome of Sheila’s career in health law and policy.

International Recognition of Human Rights to Reproductive Health

The United Nations (UN) International Covenant on Economic, Social and Cultural Rights (ICESCR), a leading human rights instrument, provides in Article 12(1) that parties to the Covenant shall ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. Clause 2(d) requires parties’ commitment to ‘creation of conditions which would assure to all medical services and medical attention in the event of sickness’. The World Health Organization (WHO) understands ‘health’ to encompass ‘physical, mental and social well-being and not merely the absence of disease or infirmity’,³ but clause 2(d) concerns only medical services and attention. The WHO Constitution observes that ‘(t)he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’,⁴ but, drafted in 1946, the observation did not specify distinction of sex, gender or sexual orientation. Reproductive health is of particular concern to women, however, and the UN Convention on the Elimination of All Forms of Discrimination against Women (the Women’s Convention) accordingly provides in Article 12(1) that: ‘States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning’.⁵ Women’s related claims to reproductive rights and reproductive health have become controversial, and bitterly contested, particularly by conservative religious hierarchies and agencies. The Roman Catholic Church, through its unified, singular leadership, has been most outspoken in its condemnation of the concept of ‘reproductive health’, and opposed the Convention’s adoption first at the UN Conference on Population and Development, held in Cairo in 1994, and again at the Fourth World Congress on Women, held in 1995 in Beijing. The Catholic hierarchy, of course, excludes women, but the Holy See, having Permanent Observer status in the UN, is entitled to attend UN meetings, and had the largest delegation at the Beijing Congress. The concept of reproductive health, modelled on the description of ‘health’ in the WHO Constitution, describes ‘reproductive health’ as:

a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.⁶

Catholic church leaders, having renounced a ‘sex life’ of their own and tolerating one for others only within lawful marriage for the purpose of procreation, were actively hostile to the Beijing Declaration in its continuing explanation that:

Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law ….⁷

The reference to family planning has long been understood to embrace contraception and contraceptive sterilisation, but opponents of family planning often seek to add stigma by extending the reference to cover abortion, so that, for instance, family planning centres, such as Planned Parenthood affiliates in the USA, can be condemned, restricted or defunded, and picketed as abortion clinics. However, the Beijing Declaration rejected abortion as a method of family planning. The Declaration included abortion in the subsequent phrase ‘other methods … for regulation of fertility’, emphasising their acceptability only when ‘not against the law’.

In recent times, family planning has emerged from the negative context of fertility control through contraception and sterilisation to include fertility promotion. In the past, this referred to fertility preservation, but now includes the varieties of overcoming infertility subsumed under the generic description of ‘test tube’ or in vitro fertilisation (IVF). Forms of IVF are now widely available, although often at high individual cost, as a branch of ‘luxury medicine’, since publicly and privately funded health insurance services may not follow the WHO in characterising infertility as a disease.⁸ In 2000, the Constitutional Chamber of the Supreme Court of Costa Rica ruled IVF constitutionally prohibited in the country for violation of an embryo’s human right to life from conception, with which fertilisation was assumed to be synonymous, due to the tendency of IVF techniques to leave surplus embryos naturally to disintegrate when not transferred to women’s bodies. The prohibition was challenged before the Inter-American Court of Human Rights for violations of the American Convention on Human Rights. The Court’s judgment was released in November 2012.⁹

The Court distinguished ‘fertilisation’ from ‘conception’, and observed that ‘the term “conception” cannot be understood as a moment or process exclusive of a woman’s body, given that an embryo has no chance of survival if implantation does not occur’.¹⁰ The Court rejected the claim that ‘fertilisation’ is included in a reference to ‘conception’, since the latter is dependent on an embryo’s implantation in utero, while the former is not. In an extensive review of the jurisprudence of the European Court of Human Rights, the Court noted that ‘the regulatory trends in international law do not lead to the conclusion that the embryo should be treated in the same way as a person, or that it has a right to life’.¹¹ This accorded with the Court’s earlier finding that ‘the historic and systematic interpretation of precedents that exist in the inter-American system confirms that it is not admissible to grant the status of person to the embryo’.¹²

The Court ruled that denying infertile couples access to IVF in order to protect un-implanted embryos, in violation of individuals’ human rights to private and family life, and to found and raise families, was disproportionate and unjustified. The Court further found that denial constituted indirect discrimination on grounds of disability and financial means, since those with means could obtain IVF services by travel to other countries, and in particular that it constituted indirect discrimination in effect against women, since the burden of childlessness falls with distinctive impact upon women. The Court shared the view of WHO that ‘the role and status of women in society should not be defined solely by their reproductive capacity’,¹³ and found discriminatory gender stereotyping incompatible with international human rights law.¹⁴ It accepted the evidence of social science, however, that, particularly in Latin America, women outside convent life not discharging duties of motherhood attract some disdain and loss of esteem in family and communal life.

The European Court of Human Rights’ (ECtHR) denial of status and rights to human embryonic life is confirmed in its protection of rights to refuse non-consensual parenthood. In the Evans case,¹⁵ for instance, one former partner in a couple that had preserved embryos from IVF treatment refused consent to their transfer to the other former partner, although they represented the latter’s only chance to have her own genetically-related child due to removal of her ovaries for a precancerous condition. The ECtHR upheld UK legislation requiring gamete donors’ consent to embryo transfer, and the consequent wastage of the embryos. The issue of what legal status in vitro embryos possess, since they are not ‘persons’, had been timorously approached in 1992 by the Tennessee Supreme Court,¹⁶ reversing a trial judge who had described an embryo as ‘a human being existing as an embryo, in vitro’, by saying that it was neither a person nor property, but sui generis, in an ‘interim category’ over which there were interests ‘in the nature of ownership’. More recently, however, courts have accepted that in vitro embryos are a species of legal property,¹⁷ leading to issues of their disposition for instance upon divorce.¹⁸

The loss or wastage of human embryos is an inescapable incident of individuals’ exercise of their human rights to natural reproduction, the loss being quite accurately calculable in IVF. An expert witness before the Inter-American Court of Human Rights estimated ‘[o]f every 10 embryos spontaneously generated in the human species, no more than 2 or 3 are able to survive natural selection an...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Table of Statutes and Other Instruments
• Abbreviations
• List of Chapter Contributors
• Foreword
• Preface
• Part I Issues at the Beginning of Life
• Part II Care
• Part III Liability
• Part IV Regulation
• Part V Issues at the End of Life
• References
• Index