Tuesday, August 9, 2011

Repugnant transactions involving life and death

A lot of repugnance is associated with transactions that involve the boundaries between the living and the dead--abortion, deceased organ donation (is brain death sufficient), assisted suicide...

In The New Republic, Eric Posner reviews The Law of Life and Death by Elizabeth Price Foley (Harvard University Press).

As he writes,
"The distinctions matter. Killing a human being is murder; discarding unwanted cell tissue is not.
"Familiar culture-war controversies have erupted over these issues. The law embodies uneasy truces and compromises, and, as is always the case, contains ambiguities and inconsistencies; and state laws vary a great deal. But a rough logic has emerged. The gestational blob gains stronger legal protections as it ascends the ladder of development. Sperm, eggs, and embryos lack rights; their owners enjoy the power to control how they are used. Fetuses do better. A woman may not abort the fetus late in pregnancy without good reason, such as risk to life or health, and a stranger commits a crime by assaulting and killing a fetus because the fetus has stronger rights than the stranger does. But the assaulter is not guilty of murder unless the fetus, in an odd turn of the law, manages to get born before it expires from its injuries. A partially born child enjoys stronger rights still.

"Death poses another set of challenges. In the old days, death meant that a person stopped breathing and his heart failed; now this is known as cardiopulmonary death. But when new technology made it possible to animate the heart and lungs in a person incapable of “waking up,” brain death was invented. Brain death enabled surgeons to carve off organs from people deemed alive under the cardiopulmonary definition, but it threw up a new set of problems. Some apparently brain-dead people would regain consciousness; technological advances later revealed that the brains of apparently brain-dead people often threw off occasional sparks—raising the question, how much brain functioning do you need to be alive? Or, if you wish, how much brain functioning does a person need for it to be wrong to kill him? Cryogenics enthusiasts insist that technicians will be able to reanimate a cryogenically preserved corpse by defrosting it. If someone destroys such a corpse, is that murder? If not, is it a wrong at all? The destruction of the corpse of a person disappoints that person’s original plan to reoccupy his body after a temporary vacancy, but prosecution of the wrongdoer would pose problems of metaphysics for which legal training leaves one sadly unprepared.

"Then there is the question of suicide, the refusal of unwanted life-preserving medical treatment, physician-assisted suicide, and euthanasia. Some countries permit euthanasia—the killing of people with severe medical problems, including infants born with horrendous birth defects which condemn them to a short miserable life. In the United States, all states tolerate suicide; two states tolerate physician-assisted suicide; and no states permit euthanasia. The Supreme Court has recognized rights to abortion, contraception, and (obliquely) unwanted life-sustaining medical treatment, but not to assisted suicide. For reasons known only to the justices, a woman’s interest in abortion trumps contrary state law but a person’s interest in ending his life does not, unless he can do so by declining medical treatment. Interests pile up on both sides of each question; it is hard to understand why the Court balances them as it does."

1 comment:

Frank said...

"a stranger commits a crime by assaulting and killing a fetus because the fetus has stronger rights than the stranger does"

Is that really how law scholars understand it?

Which of the stranger's rights are being out-weighed? The right to assault pregnant women?

Such `crimes' by non-strangers (in particular, by the mother) are a weirder case, I think. That's been written up in the papers a few times recently.