Sept 13 reading_o my body_anatomical gift act 2

Sept 13 reading_o my body_anatomical gift act 2 - Over...

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Unformatted text preview: Over kimseifi over his own body and mind, the individua! is sovereige. John Stuart Mill, 0;: Liberty More cannot dispose over himseifbecouse he is not a thing; . . . a person cannot be a property and so cannot be a thing which can be owned, for it is impossible to be a person and of thing, the proprietor and the property. Immanuel Kant, Lectures on Ethics WALT WHITMAN, 0 MY BODY? From Leaves ofGross (188D O my body! E dare not desert the likes of you in other men and women, nor the likes of the parts of you. Ibelieve the likes of you are to stand or fall with the likes of the soul, (and that they are the Soul); I believe the likes of you shah staod or fall with my poems~and that they are my poems, Man's, woman's, child, youth‘s, wife's, husband‘s, mother‘s, father’s, young man‘s, young woman's poems; Head, neck, hair, ears, drop and tympan of the ears, Eyes, eye~fiinges, iris of the eye, eyebrows, and the waking or sleeping of the lids, Mouth, tongue, lips, teeth, roof of the mouth, jaws, and the jaw—hinges, Nose, nostrils of the nose, and the partition, Cheeks, temples, forehead, chin, throat, back of the neck, neck-slue, Strong shoulders, manly heard, seapuia, hindnshoulders, and the ample side-round of the chest, Uppernarm, armpit, elbow-socket, lower-«arm, ann—sinews, arm—bones, . Wrist and wrist~joints, hand, palm, knuckles, thumb, forefinger, fingerwjoints, finger-nails, Broad breastufront, curling hair of the breast, breast—bone, breasteside, Ribs, belly, backbone, joints of the backbone, Hips, hipusoekets, hip-strength, inward and outward round, manwbails, mammot, Strong set of thighs, well carrying the trunk above, Leg~fibers, knee, knee-pan, upper~leg, under—leg, All attitudes, all the shapeliness, all the belongings of my or your body or of any one's body, male or female, The Iung~sponges, the stomach—sac, the bewels sweet and clean, The brain in its folds inside the shalt—frame, Sympathies, heartnvalves, palate-valves, sexuality, maternity. . . . O i say these are not the parts and poems of the Body only, but of the Scot, O I say now these are the Soul! (“Ms W e >- \“mNMNNN‘Vwmwn-wwvww . a Consider Jo March of Louisa May Alcott’s Little Women, who impulsively 5026 her hair to help her father, a Union Army chaplain lying ill at the front. Entering the house bonneted, Jo gave her mother the money: “My dear, where (iié you get it? Twentyufive dollars! Jo, I hope you haven’t done anything rash?” "No, it’s mine honestly; I didn’t beg, borrow or steal it. I earned it; anti I don’t think you’ll blame me, for I only sold What Was my own.” As she spoke, Jo took off her bonnet, ené a general outcry arose, for all her abundant hair was cut short. . . . ' “What mecle you (it) it?” asked Amy, who would as soon have thought of cutting off her head as her pretty hair, “Well, I was wild to do something for father,” repliecl Jo. “ . .. I hate to borrow as much as mother does . . . and {I} was bound to have some money, if I sold the nose off my face to get it. . . l I hadn’t the least idea of selling my hair at first, but as I went along I kept thinking what I could do, and feeling as if I’d like to dive into some of the rich stores and help myself. in a barber’s Window I saw tails of hair with the prices markecl: and one black tail, not so thick as mine, was forty dollars. It came over roe all of a sudden that I had one thing to make money out of, and without stopping to think, I walked in, asked if they bought hair, and what they would give for mine.” Louisa M. Alcott, Little Women 133 (Grossett & Dunlap, 1915). Jo’s sale of her hair was and is legal. But under current law, Jo could not legally sell “the nose off her face,” or her kidney, her bone marrow, or her blood. Outside the state of Nevada, she could not legally sell her sexual services. And in a number of states, sale of her gestational services would also be forbidden. But some states do not outlaw sale of. gestational services, and none currently bars the exchange of money f0? genetic material such as Jo’s ova. (ill ww-u—w e w w v v um mm m \ us Wm "Am‘w-m‘mmv-mvswww-«w-wwwt my: :3 . * " V“ M '\ “W‘NW‘QWWW‘JflVTWZ‘eZ‘MVWWT‘“WLW'WV w - ~ "xNm-Ix-wmnw'wv'w\‘a'v‘fl'rr'wwkw W cwwwww-vv‘ V Couldmshouldmlzhe law outlaw all, some, or none of these transac- tions? Certainly we react differenzly to Jo’s scory than we do to the tale of a prostitute plyiug her trade or a headline announcing that “Cash- sz‘mpped Thais Sell Kidneys Illegally” (Straits Times, Sept. 3.5. 1998, at 18}. But is there a logical or ethical disiinction between chose sales? When should individuals be free to profit from their bodies, and when should they not? The decision to make a profit is, of coarse, only one of many possible decisions about the body: Jo might have chosen to give her hair away, bequeath it by will, use it to secure a debt, or cut and discard it. She might make these same decisions about. other body parts and functions: When should the stats defer to an individual’s decisions about her body and when should it limit, or oven coerce, iodividual choice? If the state does defer to the findividual, must it protect her choices with contract and tort remedies, or criminal sanctions? Conversely, should—could— the state conscrlpt badly needed body partswblood, for example, or cadaveric organs for transplantationwas it has at times conscripted combat troops? Offer tax incentives or penalties? Prosume consent to donation? Frohibit certain types of transactions? Such questions have assumed new urgency because the uses of the body are expanding: organ transplantation permits some patients to live who would otherwise die; advanced reproductive technology enables the infertile to make use of reproductive material and services provided by others; and medical research utilizing the body’s cells and tissues offers the prospect of new treatments for currently incurable disorders. These new uses of the body ofi‘cr extraordinary benefits, but these benefits invariably depend on the transfer of body tissue or function from one individual to another. That such transfers would be confiroversial is hardly surprising. The contexfis in which they arise are novel and unnatural;'somo would have seemed more appropriate to a science fiction novel than a textbook only a couple of decades ago. Nor does the law typically offer clear guidance on transfer rights and professional responsibilities. Because transfers of the body confer medical benefits only upon recipients, transfer choices differ markedly from treatment choices. And even the autonomy norm that animates the law of health care decision making is difficult to apply to many of today’s transfer problems: some of the new technologies make use of the body after its death, while others involve the use of gametes or fetal tissue, and yet others involve the use of waste products, such as placentas, that have been discarded. In cases like these, it is not obvious whose autonomy is at stake, or even whose body. A finalwand perhaps the most fundamental—reason why transfer decisions are controversial is simply that we lack a common cultural understanding of the body as an object of exchange. We do commonly use the possessive case imrofcrring to the body; thus Jo March contemplated the sale of the nose from “her” face and did sell “her” hair. But. many individuals nonetheless reject the idea that they “own” their bodies and (3) unmuw‘wwmwmwm-u-wvw-w n w w.‘ as «. am. a \ ww m kam.mn*wj\jujem Kg :ssfighgfilvw‘ cw“ - p,“ u ‘ an“). _ ~.v.meflwnx».«m-. W'wmm‘u"¢wuw vv‘d uv‘e‘w'v w v its products. For example, a young woman who contemplated—and rejectedmthe sale of her ova found that {oily eggs did not seem mine, in the sense of ownership... Somehow these eggs were mine, yet not- Not unlike a gift. Gifts are given to us, lay friends and family, and become ours. But we are not permitted to do §ust anything with them. Ericka Blacksher, On Ova Commerce, 30 HCR 29 (Sept 2000). To see the body as a gift is to see it as a source of obligations as well as rights. Under this View, the individual acts as a trustee of her body or, to borrow from the environmental movement, as a steward. But she does notwor at least should note—act as fee-simple owner. The stewardship perspective is sometimes grounded in the Biblical View that “God created man in his own image” (Genesis1:27), a vaguer sense of the sanctity of life, or a secular understanding of the body as an essential aspect of‘ what constitutes being human and what links as to the natural world. Whatever its source, this perspective is often coupled with a profound sense of discomfort with actions that implicitly treat the body as an commodity like other objects in the world; it thus tends to reject commercial transactions and to demand clear social benefits as a precoo~ dition to transfer. But not everyone sees the body as a gift that demands stewardsl'fip and commercial sacrifice. For example, many young women sell their ova without moral qualms; indeed, some describe the desire to help the infertile as a basis for their decision to sell to others. Those who reject the stewardship perspective tend to see restrictions on individual control of the body as both paternalistic and irrational. If individuals are sovereign with respect to their brains, their beauty, and their brawn, they ask, should they not also be sovereign with respect to their other physical endowments? In the United States today, both the stewardship and sovereignty perspectives are widely held. To complicate matters, many individuals subscribe to both points of View, expressing deep convictions that one transaction involving body parts should be penalized—and equally deep convictions that another should be freely permitted. The law evidences the same ambivalence, outlawing some transactions while facilitating others. Such ambivalence is not necessarily wrong, but it does demand explanation and justification: In some cases, prohibitions [on trade may be] justified on grounds of paternalism, to exclude “exchanges born of desperation” such as selling oneself into slavery. Arguments for overruling private preferences can also be grounded in lack of information, weakness of will, the social shaping of individual wants and similar phenomena. In still other cases the prohibition is needed to prevent free riding and overcome a collective—action problem: no single citizen would he materi- ally hurt if he were to sell his vote, but all would be hurt if all did so. [Justification might also he utilitarian] The reason why people (4) "w'www‘wmw-u mun-w www'h'swu “W”“‘V~‘*WWMWEWXVWWNXVV‘W‘WV“ nuannmwmmmam N““MN"r'V‘H‘MAIN"\‘ANWN’l‘JJ-I‘J‘I‘N‘f‘wywwm .w, xx ww >w m m m cannot buy a medical degree is that; we fieeti be be sure that our doctors are qualified to treat us. . . . Jen Elster, Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens 13 (Ruesefi Sage Foundation, 1992}. In addition to the pragmatic bases, for transfer restrictions identified by Professor 7 Eister, many believe that transfer restrictions can also be justified when essentiai to support our society’s core vaiuee: Freedom of speech, press, reiigion, aesembiy: none of these require money payments; none of them are available at auction. . .. Marriage and procreation rights are not for sale. Citizens are limited to one spouse and cannot purchase a license for poiygamy. And if limits are ever set on the number of chfldren we can have, . .. these won’t take the form {of} licensee to give birth that can he tradesi o}: the market. . . . The right to leave the political community is not foe safe . . V And . . . exemptions from military service, from jury duty, and from any ether form of commuzielly imposed work cannot be sold by the govern- ment or bought by citizens. . . . Thefse prohibitions represent} . . . restrainfls} of market liberty for the sake of some commuzza] conception of personal éiberty, a reaeeertion, at lower leveES of 1033, of the ban on efavery. Michael Welzer, Spheres of Justice: A Defense of Piuralism and Equality IOU-02 (Basic Books, 1983). - The Jaw has persistently refused to impose on a stranger the more! obligezion of common humanity io go so the aid of another human being who is in danger, even if the other is in danger of losing his life, Some of the decisions have been shocking in the extreme. The expert swimmer . . . who sees another drowning before his eyes, is not required to do anything at all about it, but may sit on the dock, smoke his cigarette, and watch the man drown. . .. [One is not] required to play the part of Florence Nightingale and bind up tine wounids of a stronger or even to cry a warning to one who is walking mic thejaws of a dangerous machine. Presser & Keeton, The Law of Toms H‘W'u'u wmvmmm-ymmwwm-mwvwmwwwwarm-w wwvm'mmmmw way V‘e'vn «so 7 v V" v n w w a ’IAM.IANN'NNMN’VNWWj‘A'fry'V'y’V‘vym'w-VWVMy .wvw “\“xNw‘wvvvw-a.NWMN'W'»‘»N"—('v'k'wv WM I'V'WI‘erwv “a v - v v McFALL v. SHIMP 10 Pa D s c 3d so {1978) FLAHER’E‘Y, J. The Plaintiff, Robert McFall, suffers from a rare bone marrow disease and the prognosis for his survival is very dim, uniess he receives a bone marrow transplant from a compatible donor. Finding a compati- ble donor is a very difficult basis: and limited to a selection among close relatives. After a search and certain tests, it has been determined that only the Defendant is suitable as a donor. The Defendant refuses to submit to the necessary transplant and before the Court is a request for a preliminary injunction which would compel the defendant, or seeks to compel the defendant to submit to further tests, and eventually the bone marrow transplant. Although a diligent search has produced no authority, the Plaintiff cites the ancient statute of King Edward I pointing out, as is the case, that this Court is a successor to the English courts of Chancery and derives power from this statute, almost 700 years old. The question posed by the Plaintiff is that, in order to save the life of one of its members by the only means available, may society infringe upon one’s " absolute right to his “bodily security.” The common law has consistently held to a rule which provides that one human being is under no iegal compulsion to give aid or take action 5’ to save that human being or to rescue. A great deal has been written regarding this rule, which, on the surface appears to be revolting in a moral sense. Introspection, however, will demonstrate that the rule is founded upon the very essence of our free society. It is noteworthy that counsel for the Plaintifl" has cited authority which has developed in other societies in support of the Plaintist request in this instance. Our society, contrary to many others, has as its first principle, the respect for the individual, and that society and government exist to protect the individual from being invaded and hurt by another. Many societies adopt a contrary view which has the individual existing to serve the society as a whole. In preserving such a society as we have it is bound to happen that great moral conflicts will arise and will appear harsh in a given instance. In this case the chancellor is being asked to force one member of society to undergo a medical procedure which would provide that part of that individual’s body would be removed from him and given to another so that the other could live. Morally, this decision rests with the Defendant, and in the view of the Court, the refusai of" the Defendant is morally indefensible. For our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon Whig-hour. society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would krifi‘w no iimits and one could not imagine where the line would be drawn. For a society, which respects the right of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from its sustenance for another member, is revolting to our hard wrought concepts of jurisprudence. Forceable extraction of living body tissue causes revulsion to the judicial mind. Such would raise the spectre of the swastika and the Inquisition, reminiscent of the horrors this portends. This court makes no comment on the law regarding the Plaintiff’s rights in an action at law for damages, but has no alternative but to deny the requested equitable relief. . . . G») 'wu'wwwwwuww‘wnw-u-u w-w-w mm «we-V“ wm wm'vx mmwmmmwwwwwm wwva w: "n-IquMn'Voflfl—‘TMWN we! w eu-vvv wvv w nwmwzmvn-Mmquwwwvmwweww ~< v v «muvwsw UNIFORM ANATOMICAL GIFT ACT {1987) § 1. Definitions. As used in this [Actlz l) “Anatomical gift” means a donation of all or part of a human body to take effect upon or after death. 2} “Decadent” means a deceased individual and includes a stillborn infant or fetus, 3} “Eocument of gift” means a card, a statement attached to or imprint- ed on a motor vehicle operator’s or chaufl'eor’s license, a will, or other writing used to make an anatomical gilt. ’2’} “Part” means an organ, tissue, eye, bone,.fertery, blood, fluid, or other portion of a human body. § 2. Making, Amending, Revoking, and Refusing to Make Anew tomica} Gifts by Individual. a) An individual who is at least [18] years of age may (i) make an anatomical gift for any of the purposes stated in Section 6(a), (ii) limit an anatomical gift to one or more of those purposes, or (iii) refuse to make an anatomical gift. b) An anatomical gift may be made only by a document of gift signed by the donor. If the donor cannot Sign, the document of gift must be signed by another individual and by two witnesses, all of Whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed. c) If a document of gift is attached to or imprinted on a donor’s motor vehicle operator’s or ohaufi'eur’s license, the document of gift must comply with subsection (b). Revocation, suspension, expiration, or can— cellation of the license does not invalidate the anatomical . . f) A donor may amend or revoke an anatomical gift, not made by will, only by: (1) a signed statement; (2) an oral statement made in the preSence of two individuals; (3) any form of communication during a terminal illness or injury addressed to a physician or surgeon; or (4) the delivery of a signed statement to a specified clones to whom a document of gift had been delivered. g) The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills, or as provided in subsection (f). b) An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death. i) An individual may refuse to make an anatomical gift of the individu- sl’s body or part by {i) a writing signed in the same manner as a document of gift, (ii) a statement attached to or imprinted on a donor’s motor vehicle operator’s or chauffeur-’3 license, or (iii) any other writing used to identify the individual as refusing to make an anatomical gift. During a terminal illness or injury, the refusal may be an oral statement or other form of communication. § 3. Making, Rewriting, and Objecting to Anatomical Gifts, by Others. ' a) Any member of the following classes of persons, in the order of Priority listed, may make an anatomical gift of all or a part of the decedent’s body for an authorized purpose, unless the decedent. at the mawnaxmvxmmnmwwmmuwvmwmwckupowwow-Wm v u VV'V'VRQV'V- vv m r -. v w n, .WW 7% 8%”.fiNflNgmymeffiwwnww wmm. \«Nfimmr-vw'wxmm‘uwyw b'u'u'v‘i va « w. WW '4 u m, time of death, has mania on unrevoked refusal to make that anatomical gift: 1) the spouse of the ciecedent; 2) an adult son or daughter of the decedent; 3) either parent of the ciecedent; 4} an aciuit brother or sister of the decedent; 5) a grandparent of the decedent; and 6) a guardian of the person of the decedent at the time of death. b) An anatomical gift may not be made by a person listed in subsection (a) if: 1) a person in a prior class is availabie at the time of death to make an anatomical gift; 2} the person proposing to make an anatomical gift knows of a refuse} or contrary indications by the decedent; or 3) the person proposing to make an anatomical gift knows of an objection to making an anatomical gift by a member of the person’s class or a prior class. c) An anatomical gift by a person authorized under subsection (a) must be made by (i) a document of gift signed by the person or (ii) the person’s teiegraphic, recorded telephonic, or other recorded message, or other form of communication from the person that is contemporaneously reduced to Widtng and signed by the recipient. § 4. Authorization by [Coroner] or [Local Public Health Official}. a) The {coroner} . . . may release and permit the removal of a part from a body Within that official’s custody, for transplantation or therapy, if; 1) the official has received a request for the part from a hospital, physician, surgeon, or pronurement organization; 2) the official has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent’s medical records and inform persons listed in Section 3(3) of their option to make, or object to making, an anatomical gift; 3) the official does not know of a refuse} or contrary indication by the decedent or objection by a person having priority to act as listeci in Section 3(3); 4) the removal will be by a physician, surgeon, or technician; but in the case of eyes, by one of them or by an enucleator; 5) the removal will not interfere with any autopsy or investigation; 6) the removal Wili be in accortiance with accepted medical stan- dards; and 7} cosmetic restoration wii‘é be done, if appropriate. MAM"xNMA”\M"0NWW‘WM¥WV“WW'www'rwwvw w my“ . we. .. .. w‘w w * ~ «v‘v'n‘l‘w‘»; “M wwu wwmwwwm"vwwmw v w on m N’oKNN’Q"AM§§fay%y§jufmflWsw‘mo-w wmwwmw, b) If the body is not within the custody of the {coroner} .. _, the [locai public health officer] may release and permit the removal of any part from a body in the [local public health officer’s] custody for transplanta- tion or therapy if the requirements of subsection {a} are met, . .. § 5. Routine Inquiry and Required Request; Search and Notifi- cation. 3.) On or before admission to a hospitai, or as soon as possible thereafter, a person designated by the hospital shall ask each patient who is at ieast [18} years of age: “Are you an organ‘or tissue donor?” If the answer is affirmative the person shall request a copy of the document of gift. If the answer is negative or there is no answer and the attending physician consents, the person designated shall discuss with the patient the option to make or refuse to make an anatomical gift. The anawar to the question, an available copy of any docnnient of gift or refusal to make an anatomical gift, and any other relevant information, must be placed in the patient’s medical record. 13) If, at or near the time of death of a patient, there is no medical record that the patient has made or refused to make an anatomical gift, the hospital {administrator} or a representative designated by the {adminis- trator] shall discuss the option to make or refuse to make an anatomical gift and request the making of an anatomical gift pursuant to Section 3(a). The request must be made with reasonable discretion and sensitivi- ty to the circumstances of the family. A request is not required if the gift is not suitable, based upon accepted medical standards, for a purpose specified in Section 6. An entry must be made in the medical record of the patient, stating the name and affiliation of the individual making the request, and of the name, response, and relationship to the patient of the person to whom the request was made. . . . § 6. Persons Who May Become Done-es; Purposes for Which Anatomical Gifts may be Made. a) The following persons may become dances of anatomical gifts for the purposes stated: 1) a hospital, physician, surgeon, or procurement organization, for transplantation, therapy, medical or dental education, research, or advancement of medical or dental science; 2) an accredited medical or dental school, college, or university for education, research, advancement of medical or dental science; or 3) a designated individual for transplantation or therapy needed by that individual. b) An anatomical gift may be made to a designated donee or without designating a donee. If a donee is not designated or if the dense is not available or rejects the anatomical gift, the anatomical gift may be accepted by any hospital. c} If the clones knows of the decedent’s refusal or contrary indications it make an anatomicai gift or that an anatomical gift by a member of 2 class having priority to act is opposed by a member of the same class or a prior class under Section 3(a), the donee may not accept the anatomica gift. (“-3 ‘3‘V'KWHAW‘u‘vm.Nchwm-wm"vwwvww-u .v, «, «\waefiwuwwwmwva y w: m \wmwmwm-wmumww-v u wu w-w, ‘ 2m w x a a - - — «"wv'v'v'v'w-wx ...
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This note was uploaded on 08/02/2011 for the course UGS 302 taught by Professor Staff during the Spring '08 term at University of Texas at Austin.

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Sept 13 reading_o my body_anatomical gift act 2 - Over...

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