The COVID-19 pandemic will generate vexing ethical issues for the foreseeable future and many journals will be open to content that is relevant to our collective effort to meet this challenge. While the pandemic is clearly the critical issue of the moment, it’s important that other issues in medical ethics continue to be addressed as well. As can be seen in this issue, the Journal of Medical Ethics will uphold its commitment to publishing high quality papers on the full array (...) of medical ethics. At the same time, JME aims to be a premiere home for ground-breaking scholarship on the ethical issues raised by COVID-19. Toward this end, we have a number of papers that are freely available online and for which production has been fast-tracked.1–5 A challenge for authors who want to write about the pandemic is the rapidly evolving nature of the situation and the time it takes for journal content to be reviewed and published, even when fast-tracked. For that reason, all authors who would like to submit a paper on the pandemic can also submit a post to the JME blog prior to submitting a full paper to the journal. Those interested in writing for the JME blog should contact one of its editors, Hazem Zohny or Mike King. Over the last 3 weeks, 30 high-quality commentaries on the pandemic have been posted to the blog. These posts are circulated widely via the JME Twitter and Facebook feeds and have stimulated significant …. (shrink)

There is legal uncertainty and academic disagreement as to the legal status of biological material that has become separated from the person. This article sets out the two criteria upon which the assessment of the legal status of ‘separated biological material’ ought to be made. It is suggested here that any argument concerning the legal status of separated biological material needs to (i) assess which ownership entitlements in the material the law ought recognize and (ii) assess which set of legal (...) rules ought to be used to protect these ownership entitlements. There are also limits to the way these two criteria ought to operate. First, the considerations that are necessary to justify an ownership entitlement in a body part vary between different types of ownership entitlements. Second, whether there is a necessary connection between recognizing an ownership entitlement and protecting the entitlement in a particular way also varies in terms of the type of ownership entitlement in question. By isolating these two criteria, and identifying the limits to their operation, this article prescribes an analytical framework through which the law and academic commentary can be viewed. (shrink)

This article aligns two complementary claims: that sexual penetration should be considered a wrong and that consent requires express words and conduct that manifest a person’s willingness or acquiescence towards the specific act. If sexual penetration is a wrong, it will only be justified if there are reasons that permit the action and if these were the ones that the defendant acted on. A person’s internal attitude of willingness or acquiescence towards the specific act can provide the necessary guiding reasons (...) to justify the wrong. However, words and conduct that manifest or express this internal attitude are also needed in order to provide the applicable explanatory reasons to justify the wrong. Alternatively, expressive consent can excuse the wrong by justifying the defendant’s mistake as to the applicable guiding reasons. Without the requirement of expressive consent, the criminal law is unable to capture the culpability of defendants whose deliberation over the use of force on another person did not include the other person’s expression of willingness to engage in a penetrative sexual act. (shrink)

It is sometimes said by legal scholars that ‘hard cases make bad law’, by which they mean an extreme case provides a poor lens through which to view general laws. It can be said in retort that ‘bad laws make hard cases’; implying that the case may be a controversial one only because the general laws that govern it are poorly formulated. The same tension may be found in medical ethics. Perhaps extreme cases provide a poor lens through which to (...) view general ethical standards, or perhaps the case is controversial by virtue of the prevailing ethical standards being poorly formulated. It becomes important to consider whether a case is controversial or extreme. At first blush, the case of ‘Mrs A’—outlined in this edition by Miller et al 1—is both. The article by Miller et al raises a series of ethical questions concerning Advanced Euthanasia Directives and highlights weaknesses in the Dutch regulatory procedures. Also included in this edition are responses to the Miller et al article, by Menzel2 and Jongsma et al.3 These responses challenge some of implications that Miller et al seek to draw from the case. Miller et al have also replied to Jongsma et al in this edition.4 While the Miller et al article provides a detailed account of the formulation …. (shrink)

The feature article in this edition outlines and then critically examines the Nuffield Council of Bioethics’ Report, ‘Genome Editing and Human Reproduction: Social and Ethical issues’. While Christopher Gyngell, Hilary Bowman-Smart & Julian Savulescu, ‘support the approach taken by the Nuffield Council’,1 their findings are stronger than those in the Report, arguing that - beyond being permissible - many instances of heritable genome editing will be moral imperatives. A collection of engaging responses to this feature article are provided by Rachel (...) Horton & Anneke M Luccason, Pete Mills, and Sarah Chan. As a short-sighed introvert, I am going to leave aside my concerns about Gyngell’s and colleagues’ account of the weak and unhappy gene pool in which I swim, and instead focus on their talk of moral imperatives. Gyngell and colleagues construct their moral imperative argument by way of analogy. The most straightforward, and perhaps most compelling, claim concerns single gene disorders. I reconstruct the claim in the following way: 1. There is a moral imperative to screen newborns for phenylketonuria. 2. If it were possible, there would be a moral imperative to provide replacement enzyme therapy for PKU. 3. By analogy, if it were possible, there would be a moral imperative to make safe genome edits which prevent PKU. The same analogical interference is claimed in arguments in favour of: editing around 27 mutations associated with coronary heart disease, editing to shift individuals of low or …. (shrink)

I am sceptical as to the contribution that human rights can make to our evaluation of medical law. I will argue here that viewing medical law through a human rights framework provides no greater clarity, insight or focus. If anything, human rights reasoning clouds any bioethical or evaluative analysis. In Section 1 of this article, I outline the general structure of human rights reasoning. I will describe human rights reasoning as reasoning from rights that each person has ‘by virtue of (...) their humanity’, reasoning from rights that provide ‘hard to defeat’ reasons for action and reasoning from abstract norms to specified duties. I will then argue in Section 2 that, unless we re-conceive of human rights as narrow categories of liberties, it becomes necessary for our human rights reasoning to gauge the normative force of each claim or liberty. When we apply this approach to disputes in medical law, we end up ‘looking straight through’ the human right to the values and features that each person has by virtue of their humanity. (shrink)

Described as one of the two fathers of medical law, Professor Peter Skegg has been a leading figure in the study of law and medicine. Over a 46 year academic career at the University of Auckland, University of Oxford, and the University of Otago, Professor Skegg has helped develop the field of medical law into a burgeoning academic discipline and has provided intellectual guardianship for the practice of law and medicine. This collection brings together contemporaries, colleagues, and former students of (...) Professor Skegg to celebrate his enduring contribution to the study of medical law. This edited collection contains twelve essays written by a range of internationally recognised medical lawyers. The topics cover the regulation of medical practitioners, consent, rights in bodily material, euthanasia, compensation and ethical approval for medical research, treatment orders for mental health conditions, and surrogacy laws. Whilst some of the essays return to territory that has been initially surveyed by Peter s research and analysis, others touch upon some wider medical law topics, illustrating Peter s lasting contribution to medical law as well as mapping out some of the new frontiers for the discipline of medical law. Academics, students and practitioners, from a range of jurisdictions, who are interested in how the law governs the provision of healthcare will benefit reading the various essays contained here. In addition, anyone who has had the good fortune of working with, or learning from, Professor Skegg will also enjoy the opportunity to return to the field of study that he founded. (shrink)

Arguments about Abortion: Personhood, Morality, and Law approaches a complex set of issues with analytical rigour, clarity, and a respectful directness. It extensively buries poor argumentation and...

Olaf has a theory about advancing technologies being both our saviour and our doom. While we ought to avoid over-analysing claims of fictitious snowmen, we can pause to consider whether it is possible for an advancing technology to be both our saviour and our doom. I will maintain that it is. But for now, note how it is tempting to resolve the overlap by thinking about advancing technologies and individuals. In a possible reformulation of Olaf’s claim, advancing technology can be (...) one person’s saviour, but in being so, is another person’s doom. This reformulation is a type of an ‘individualisation argument’ against advancing technology. Specifically, it is the claim that while an individual’s use of technology may solve their iteration of a problem, it may also undermine a societal response to the broader problem. Peterson, in this edition’s Feature Article, has this type of ‘individualisation argument’ in his sights when he considers its application to non-medical egg freezing. That is, freezing an egg for social reasons rather than medical reasons. Peterson formulates the ‘individualisation argument’ in the following way1: > P1: It is morally wrong to let individuals use technology X—in order to try to handle a problem that is social in nature—if the use of X will somehow work against a social solution to a social problem P. > > P2: If individuals make use of a technology like …. (shrink)

When part of a person's body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material is able to obtain. A 'no property rule' which states that there is no property in the human body was first recorded in an English judgment in 1882. Claims based on property rights in the human body and its parts have failed on the basis that the human body is not the subject of property. (...) Despite a recent series of exceptions to the 'no property rule', the law still has no clear answer as to the legal status of the body or its material. In this book, Wall examines the appropriate legal status of bodily material, and in doing so, develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law. Wall assesses when a person ought to be able to possess, control, use, or profit from, his or her own bodily material or the bodily material of another person. Bodily material may be valuable because it retains a functional unity with the body or is a material resource that is in short supply. With this in mind, Wall measures the extent to which property law can represent the rights and duties that protects the entitlement that a person may exercise in bodily material, and identifies the limits to the appropriate application of property law. An alternative to property law is developed with reference to the right of bodily integrity and the right to privacy. (shrink)

Sport is predicated on the idea of victors emerging from a level playing field. All ethically informed evaluate practices are like this; they require an equality of respect, consideration, and opportunity, while trying to achieve substantively unequal outcomes. For instance: limited resources mean that physicians must treat some patients and not others, while still treating them with equal respect; examiners must pass some students and not others, while still giving their work equal consideration; employers may only be able to hire (...) one applicant, while still being required to treat all applicants fairly, and so on. The 800 m is meant to be one of these practices: a level and equidistance running track from which one victor is intended to emerge. The case of Caster Semenya raises challenging questions about what makes level-playing-fields level, questions that extend beyond any given playing field. In the Feature Article for this issue Loland provides us with new and engaging reasons to support of the Court of Arbitration for Sport decision in the Casta Semenya case. The impact of the CAS decision requires Casta Semenya to supress her naturally occurring testosterone if she is to compete in an international athletics events. The Semenya case is described by Loland as creating a ‘dilemma of rights’.i The dilemma lies in the choice between ‘the right of Semenya to compete in sport according to her legal sex and gender identity’ and ‘the right of other athletes within the average female testosterone range to compete under fair conditions’ (see …. (shrink)

Consider a scenario where, at the start of an appointment with a therapist, she explains to you that ‘the success of the therapy will depend on your own positive expectations, the respect and esteem that you have for me as a qualified health professional, the warm tone and empathic approach that I adopt towards you, and the trust that you place in me, during the course of treatment’. You might find this transparency about the therapeutic process to be refreshingly honest. (...) You might, however, be surprised if this openness turned out to be an ethical obligation that she owed you. Yet, for some commentators, this ‘open’ approach to psychotherapy – where there is openness about the common factors that can explain the efficacy of the therapy –is required by ethical standards of informed consent and respect for patient autonomy. In this edition of the Journal of Medical Ethics, Garson Leder formulates two responses to this type of ‘open therapy claim’: that ‘….informed consent does not require the practitioners ‘go open’ about the therapeutic common factors in psychotherapy, and clarity about the mechanism of change shows us …. (shrink)

The Journal of Medical Ethics can sometimes read part Men Like Gods and part A Brave New World. At times, we learn how all controversies can resolved with reference to four principles. At other times, we learn how “every discovery in pure science is potentially subversive”.1 This issue is no exception. Here, we can read about the utopia of gene editing, manufactured organs, and machine learnt algorithmic decision-making. We can also read about the dystopia of inherited disorders from edited germlines, (...) the testing of xenotransplants on braindead patients, and misdiagnosis by artificial intelligence. What we see in the three papers that I will foreground here is the application of medical ethics to avoid the dystopia while preserving the promises of medical science. But as I seek to explain here, our ability to address the controversies that we anticipate in medical science depend on our ability to refine our understanding of what medical ethics requires of us now. From the diagnosis of eye diseases from fungus images to predicting the risk of imminent risk of suicide attempts, machine learnt medical decision making has, in some high profile instances, outperformed clinicians in medical diagnosis and treatment recommendations. While clinician and machine learnt diagnoses will both involve degrees of uncertainty and fallibility, Thomas Grote2 asks us to consider is how much weight a clinician ought to give an algorithmic diagnosis which she disagreements with. Since a clinician is held to account for …. (shrink)

The purpose of this article is to identify a limit to the appropriate application of property law to the use and storage of bodily material. I argue here that property law ought to be limited to protecting ‘contingent rights’ and that recent cases where property rights have been recognised in semen represent the application of property law beyond this limit. I also suggest how the law ought to develop in order to avoid the overextensive use of property law.