The actions of pregnant women can cause harm to their future children. However, even if the possible harm is serious and likely to occur, the law will generally not intervene. A pregnant woman is an autonomous person who is entitled to make her own decisions. A fetus in-utero has no legal right to protection. In striking contrast, the child, if born alive, may sue for injury in-utero; and the child is entitled to be protected by being removed from her parents (...) if necessary for her protection. Indeed, there is a legal obligation for health professionals to report suspected harm, and for authorities to protect the child's wellbeing. We ask whether such contradictory responses are justified. Should the law intervene where a pregnant woman's actions risk serious and preventable fetal injury? The argument for legal intervention to protect a fetus is sometimes linked to the concept of ‘fetal personhood’ and the moral status of the fetus. In this article we will suggest that even if the fetus is not regarded as a separate person, and does not have the legal or moral status of a child, indeed, even if the fetus is regarded as having no legal or moral status, there is an ethical and legal case for intervening to prevent serious harm to a future child. We examine the arguments for and against intervention on behalf of the future child, drawing on the example of excessive maternal alcohol intake. (shrink)

The contributions in this volume represent a detailed exploration of the salient legal and theoretical puzzles arising out of the body-as-property question, and a collation of the broad spectrum of analyses on offer.

To what extent should scientists, doctors and the community be constrained in their decision-making by a duty to posterity? How should we as a community balance our desire to benefit the present generation against the need not to irretrievably harm our successors? These questions are discussed with particular reference to genetic research and treatment that may have great potential for people suffering from genetic disease but may cause inherited changes in future generations, either deliberately or inadvertently. We conclude that the (...) community should take account of the interests of its successors but this should not immobilise us in the decisions we make for the present. (shrink)

In the wake of three high-profile judicial decisions concerning the use of human biological materials, the editors of this collection felt in 2011 that there was a need for detailed scholarly exploration of the ethical and legal implications of these decisions. For centuries, it seemed that in Australia and England and Wales, individuals did not have any proprietary interests in their excised tissue. Others might acquire such interests, but there had been no clear decision on the rights or otherwise of (...) the persons from whom the tissue was obtained. In 2009, however, the Court of Appeal of England and Wales recognised a limited exception to this position in Jonathan Yearworth and others v North Bristol NHS Trust . In that case, the Court held that the appellants, who had deposited semen samples for freezing before they undertook treatment for cancer, had “for the purposes of a claim in negligence … ownership of the sperm which they had ejaculated”. One year later, the Supreme Court of Queensland, Australia, took a similarly property-based approach to determining how a semen sample stored shortly before death should be dealt in Bazley v Wesley Monash IVF . According to that court, the co-executors of the estate had sufficient proprietary interests in the semen to legally demand its return from the laboratory where it was held. In 2011, the New South Wales Supreme Court similarly found that the widow of a recently deceased man had a right to possession of his semen in Joceyln Edwards; Re the estate of the late Mark Edwards .In the editors’ view, these decisions signalled a turning point in the Anglo-Australian jurisprudence in this area, taking the law a step beyond the decisions of the late 20th century such as R v Kelly , in which possessory rights were found …. (shrink)

When new laws are being considered to regulate emerging technologies, it is common to engage in a formal consultation process to assess community views, especially in sensitive areas where views may differ widely. However, it is not clear how we should assess the responses to such consultation. If the respondents with the most extreme views, at either end of the political or ethical spectrum, speak in large numbers or strong language, their submissions surely cannot be added up and given the (...) weight of the majority in determining the course of future action. The ‘silent majority’ of the community may not participate in the consultation process at all. Even if they do participate more fully, it will often not be possible to find a compromise solution that offers something to everyone.Professor Charlesworth considered these issues in his ground-breaking book, Bioethics in a Liberal Society. He said that there are some issues on which community consensus on a core set of values will not be possible. To move forward, a liberal society must accept that there will be a range of views but however discordant those views appear to be, it may still be possible to identify matters on which there is agreement. Those matters may then form the basis of a policy that is widely accepted, even if it is not what the individual participants would have chosen initially. This approach may be illustrated by examining recent community consultation in Australia concerning research involving human embryos. (shrink)

It is commonly said that patients have no right to demand that treatment must be continued when medical carers believe it is “futile” to continue it. There are certainly many judicial statements to this effect, some of which are quoted in this paper. However, there are various ways that courts can intervene, even if they do not order directly that treatment must be provided or continued. First, patients or their representatives may argue the process of decision making was unfair or (...) that they were unfairly discriminated against when treatment has been refused. To date, these arguments have met with limited success so far as enabling patients to have treatment provided or continued against medical advice. More recently, however, some patients have challenged the lawfulness of a proposed treatment regime by advancing human rights arguments, based in turn on a broader aspect of patients’ “best interests” than best medical interests. (shrink)

It is commonly said that patients have no right to demand that treatment must be continued when medical carers believe it is “futile” to continue it. There are certainly many judicial statements to this effect, some of which are quoted in this paper. However, there are various ways that courts can intervene, even if they do not order directly that treatment must be provided or continued. First, patients or their representatives may argue the process of decision making was unfair or (...) that they were unfairly discriminated against when treatment has been refused. To date, these arguments have met with limited success so far as enabling patients to have treatment provided or continued against medical advice. More recently, however, some patients have challenged the lawfulness of a proposed treatment regime by advancing human rights arguments, based in turn on a broader aspect of patients’ “best interests” than best medical interests. (shrink)

This paper outlines the current common law principles that protect people’s interests in their bodies, excised body parts and tissue without conferring the rights of full legal ownership. It does not include the recent statutory amendments in jurisdictions such as New South Wales and the United Kingdom. It argues that at common law, people do not own their own bodies or excised bodily material. People can authorise the removal of their bodily material and its use, either during life or after (...) their death, for medical or scientific purposes. Researchers who acquire human bodies, body parts or tissue pursuant to such an authority have a right to possess and use them according to the authorisation they have been given, but their rights fall short of full ownership because they are limited in the way that they can use the material. The legal rights of researchers who develop intellectual property and biological products from excised human tissue can be adequately protected by existing common law principles without the need for a new legal principle that people own body parts and tissue removed from their bodies. (shrink)

This paper describes a half-day class for 200 first year medical students. It is designed like a conference and is intended to raise students’ awareness of legal issues that arise in everyday practice. It uses the Problem Based Learning approach of event-focus, student-guided learning and student teachers. There are three parts.

Church leaders often express views on political issues and there is no objection to them doing so. However, when they direct members of Parliament on how they should vote on particular issues and intervene in litigation between private individuals, they contravene the long accepted principle of separation between church and state. That principle was formally acknowledged by Pope Benedict XVI in his most recent Encyclical Letter. The author will give examples of cases in which she believes the Roman Catholic Church (...) has overstepped the mark in intervening in the business of the state. (shrink)

The approach of the courts when considering proprietary interests in human bodily material has been pragmatic and piecemeal. The general principle was initially that such material is not legally ‘property’ that can be ‘owned’, but courts have recognised many exceptions. In determining disputes between individuals in particular cases, they have stated principles that are often inconsistent with those stated in other cases with different facts. Later judges have been constrained by these decisions, especially when made at appellate level. They can (...) distinguish the facts of one case from another to achieve a different outcome, but they cannot state new principles to be applied more widely to promote consistency. This requires the will of Parliament and legislation to introduce new principles. Experience to date suggests that such legislation will need to be wide-ranging and complex, with different principles for different circumstances. There will not be one area of law that answers all the issues that arise. (shrink)

This article analyses the recent controversy over single and lesbian women’s right to access reproductive technology. It focuses on the McBain case in relation to the Sex Discrimination Act. As well, it attempts to bring voices that have been ignored into the debate, and reflect on the values that they express.

Multidisciplinary Perspectives on the Donation of Stem Cells and Reproductive Tissue Content Type Journal Article Category Symposium Pages 15-17 DOI 10.1007/s11673-011-9351-x Authors Catherine Waldby, School of Social and Political Sciences, University of Sydney, Sydney, Australia Ian Kerridge, Centre for Values, Ethics and the Law in Medicine, Medical Foundation Building (K25), University of Sydney, Sydney, NSW 2006, Australia Loane Skene, Faculty of Law and Faculty of Medicine, Dentistry and Health Studies, University of Melbourne, Melbourne, VA, Australia Journal Journal of Bioethical Inquiry (...) Online ISSN 1872-4353 Print ISSN 1176-7529 Journal Volume Volume 9 Journal Issue Volume 9, Number 1. (shrink)

The role of the courts in ‘communicating’ with those affected by their decisions is contentious. Some legal commentators maintain that courts and legislators are able to communicate decisions effectively and that attempts to ‘dumb down’ the law will not make such decisions more accessible to doctors and other professionals. Justice Michael Kirby, on the other hand, seems to share the present author's view that judges could improve their communication of their decisions to a wider audience: ‘In future, it seems inevitable (...) that proceedings [of the High Court] will be broadcast live.Maybe one of the judges will explain the decisions of the court in simple terms as they are handed down… Adaptation to new ways and values is part of the genius of our law, although some of its practitioners need to be dragged kicking and screaming to accomplish the changes’. (shrink)