Advertisement

Legal Rights and Moral Rights

  • Alexander M. Capron

Abstract

The relationship of a genetic counselor and his patients is a delicate, complex and important one. Treating as it does subjects of great moment—the prevention of crippling diseases, even life and death themselves—it commands growing public interest and scrutiny, especially as the counselor’s predictive skills increase. It involves not only parents but geneticists, physicians, ministers, and others, in more lengthy and careful contemplation of the conception and birth of a child than occurs in any other type of “planned parenthood.” Its highly charged subject matter and deeply involved participants open it to the internal and external pressures which encumber all significant decisions. Yet when we look at the moral and legal rights of the participants in genetic counseling, the picture before us begins to grow less distinct, and we inevitably see only the sharp features, outlined in black and white and not the interesting shadings of gray.

Keywords

Genetic Counseling Legal System Legal Rule Unborn Child Moral System 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

References

  1. 2.
    Berlin, I. (1969), “Two Concepts of Liberty,” in Four Essays on Liberty. Oxford: Clarendon Press.Google Scholar
  2. 3.
    Glass, B. (1971), Science: Endless Horizons or Golden Age?, Science, 171, 38. See alsoGoogle Scholar
  3. Glass, B. Smith v. Brennan, 31 N.J. 353, 364 (1960), (“the right to begin life with a sound mind and body”) quoted inGoogle Scholar
  4. Glass, B. Glietman v. Cosgrove, 49 N.J. 22, 28 (1967), which is discussed extensively in “Rights and Duties in Genetic Counseling” in this paper.Google Scholar
  5. 5.
    Under our constitution, the historical connection between a statute and that body of morality known as religion can present some intriguing questions of legislative intent and legal effect, but these need not detain us now. See generally John Hart Ely, “Legislative and Administrative Motivation in Constitutional Law,” 79 Yale Law Journal 1205 (1970).CrossRefGoogle Scholar
  6. 7.
    Cahn, E. (1955). The Moral Decision. Bloomington and London: Indiana University Press.Google Scholar
  7. 8.
    Cahn, E. King v. Pear, 168 Eng. Rep. 208 (1779).Google Scholar
  8. 9.
    Hart, H. L. A. (1961). The Concept of Law. Oxford: Clarendon Press.Google Scholar
  9. 10.
    Hart, H. L. A. (1961). The Concept of Law. Oxford: Clarendon Press at 155.Google Scholar
  10. 11.
    See Hart, H. L. A. (1961). The Concept of Law. Oxford: Clarendon Press at 156. Professor Hart identifies the “moral outlook” of equality as the principle underlying justice and fairness, but he acknowledges that other bases for a “just” system are possible.Google Scholar
  11. Hart, H. L. A. (1961). The Concept of Law. Oxford: Clarendon Press at 160–161.Google Scholar
  12. 19.
    Fox, R. C. (1959). Experiment Perilous: Physicians and Patients Facing the Unknown. Glencoe, Ill.: The Free Press.Google Scholar
  13. 21.
    See, e.g., Glaser, B. G. and A. L. Strauss (1965), Awareness of Dying, Chicago: Aldine Publishing Co.Google Scholar
  14. Weisman, A. D. (1967), “The Patient With a Fatal Illness: To Tell or Not to Tell,” J. Am. Med. Assn., 201, 153.CrossRefGoogle Scholar
  15. 23.
    One moralist’s approach to informed consent is found in Prof. Paul Ramsey’s description of the deontological dimension of consent: “The principle of an informed consent is a statement of fidelity between the man who performs medical procedures and the man on whom they are performed.” Fidelity is thus an aspect of “the faithfulness that is normative for all the covenants or moral bonds of life with life.” Ramsey, P. (1970), The Patient as Person, New Haven and London: Yale University Press.Google Scholar
  16. 25.
    As Lord Devlin has observed: “Mill’s doctrine has existed for over a century and no one has ever attempted to put it into practice.” Devlin, P. (1965), The Enforcement of Morals, Oxford: Oxford University Press.Google Scholar
  17. 26.
    Devlin, P. (1965), The Enforcement of Morals, Oxford: Oxford University Press at 104.Google Scholar
  18. 35.
    Tedeschi, G. (1966). “On Tort Liability for ‘Wrongful Life’”, Israel Law Review,1, 529.Google Scholar
  19. 54.
    Our discussion has focused solely on the rights and duties relating to liability for negligent advice. Time does not permit an exploration of the myriad other rights and duties which arise from the geneticist-patient relationship or of the limitations (and their remedies, if any) which are placed on the exercise of these rights and duties by internal and external constraints. Some exploration of these problems especially concerning informed consent, appears in my “Law of Genetic Therapy” in The New Genetics and the Future of Man, M. Hamilton, editor, Grand Rapids, Eerdmans (1972), and see Hans Jonas, “Philosophical Reflections on Experimenting with Human Subjects,” 98 Daedalus 219 (1969)Google Scholar
  20. Henry K. Beecher, “Consent in Clinical Experimentation: Myth and Reality,” 195 J. Am. Med. Assn. 124 (1966).Google Scholar

Copyright information

© Plenum Press, New York 1976

Authors and Affiliations

  • Alexander M. Capron

There are no affiliations available

Personalised recommendations