“Medicine and the Law: How far can we go?”

“Medicine and the Law: How far can we go?”

"Medicine and the Law: How far can we go?"

Hon. Jean-Louis Baudouin

Medical sciences, in general, have undergone tremendous and rapid changes over the last twenty years. The expansion of both, knowledge and technology has been overwhelming and accelerated. It is said that certain areas of science have made more progress in the last ten years than during the entire history of humankind. This is certainly true, for instance, of the whole development of human genetics.

These changes have had two different kinds of impact. In a number of cases, they have resurrected issues and problems that were already known and which law and society had faced before, but in an entirely new and different social, legal and ethical context. Take, for instance, the difficult problems arising out of the care of terminally ill patients. In the history of hu-mankind, passive and active euthanasia have been the objects of countless religious, philosophi-cal, ethical, social, legal and political discussions in a great number of societies and in a great variety of contexts. However, in 1992 the factual and analytical context of the issues raised by the death and dying and the interruption of medical treatment are substantially different.

On the one hand, new technologies, such as the heart-lung support machines, have forced ethicists and lawyers to face the new realities of cerebral and brain death. On the other hand, the refinement of pain-killers and the expansion of terminal care procedures create for physicians some difficult dilemmas of how far they can go without provoking or hastening death while trying to alleviate pain, and thus, potentially incurring criminal as well as civil liability.

Another example of that first kind of impact is that of AIDS. AIDS is, of course, a recent disease. It is at present unfortunately both epidemic and fatal. Yet most, if not all of the ethical problems it raises, are well known and have already been examined before in a different social context. It is interesting, in that respect, to read the literature of the first quarter of the twentieth century, dealing with the transmission of syphilis, which was also, at that time, both epidemic and incurable. Yet, in those two cases, the context, in which problems concerning treatment and terminal care were raised, was substantially different, as probably, the social and ethical values at their interface were not the same.

By contrast, in other areas, late twentieth century medicine and biology have created a very different kind of impact by raising new challenges to which society as a whole (and thus ethics and law) will have to measure up without the possibility of learning on experience. Take, for instance, the whole series of difficult issues raised by the expansion of new reproductive technologies such as in vitro fertilization and embryo transplant, to say nothing of surrogate motherhood. These new methods of human conception have drastically challenged a number of legal rules that were thought permanent and immutable. On a general level first, the very legitimacy of these techniques in a society like ours must be seriously questioned. Thus, it is probable that law, under one form or another, will have, at one point, to address the issue of their legality.

On a more specific level, new reproductive technologies challenge the traditional rules of filiations. In certain cases, a child could have three mothers: the genetic mother, (that is, the woman who gave her ovum to be fertilized), the bearing mother (that is, the surrogate who bore the child during pregnancy and until birth) and finally the social mother (that is, the woman to whom the child is surrendered after birth, who has paid for the whole operation and who will raise the child as her own).

Another area which offers a new challenge and, without any doubt, needs a serious legal and ethical analysis is that of genetics. Our society will have, at one point or another, to face again two different categories of problems. General social and ethical ones, such as those touching upon the legality of inter-species breeding and of genetic engineering applied to the human person. A burning issue will probably be how far, as a society, are we prepared to go without endorsing eugenic policies with all the pitfalls that they represent in terms of the biological evolution of the human race, potential discrimination, and the symbolic danger of the materialization of the eternal dream of the {perfect human person}. Other will be of a more practical nature. The law, for instance, already has to evaluate the admissibility in evidence, for both civil and criminal trials, of genetic imprints and DNA expertise.

My first point is, I think, made: The challenges rose by modern medicine and biology, for society in our present social and economic context, are crucial, extraordinary and very complex.

Faced with these challenges, people, and mostly the informed public, often ask: what does the law do? and often blame the legislator for its silence and failure to act. The public demand for legal action takes two different forms. The first and the more common one is usually a request for some form of criminal law intervention. Part of the public wrongly believes that the main and most important role of the law, if not really the only one, is to prohibit and punish. The control of medicine and science is, thus, clearly seen in a punitive perspective and supported by criminal law. The second form is a clear demand for legislative, rather than court action: legislation or regulation, rather than case law. The public sometimes wrongly assumes that a given piece of legislation will, by magic, make the problems it addresses disappear. We, lawyers and social science people, know that this assumption is both unrealistic and dangerous. Unrealistic, on the one hand, because, to be efficient in terms of social control, legislation must be carefully prepared and timed, and not imposed without public discussion to the social group as a whole. Hastily-drafted legislation, passed because of a particular crisis situation or sudden legislation, passed because of a particular crisis situation or sudden political pressures, usually make bad law. It is dangerous, on the other hand, because legislation in itself cannot solve problems that are of a social nature without a number of preliminary conditions. Legislation that is ineffective or ineffectual brings law and the legal system, as a whole, into disrepute, because it carries with it the image of inefficiency and a built-in risk of civil disobedience.

Lawyers and jurists themselves are, however, far from unanimous in their answers to the problem of what law should do when confronted with scientific and medical challenges. This lack of consensus is understandable because answers vary greatly. Some will, of course, argue that most, if not all of the fundamental responses, even to the new problems, are already in the law. It is perfectly legitimate, for instance, to argue that most of the problems related to the legality of active and passive euthanasia have always been addressed by a number of specific sections of the present Criminal Codes concerning homicide, the duty to treat, and the duty not to interrupt a procedure that could lead to death or serious bodily harm. This answer is, superficially and formally, perfectly true in strict, analytical terms. However, it will not really satisfy either the public or the health care professionals. Physicians and nurses will, of course, be the first to point out that these various acts of legislations were drafted at a time when modern technologies did not exist and that they are at best ambiguous, if not completely obsolete; and, consequently, that the very minimal duty of the legislator today should be to update them and rephrase them in a form and a language adapted to modern realities. They will also argue that it is unfair, in view of the total absence of modern authoritative judicial precedents, to force a doctor or a nurse to go through the ordeal of a criminal trial, just to get a court opinion on the possible interpretation of these sections.

On the contrary, others will strenuously argue that law should keep away from the regulation of science, and, instead, let things stand and society develop progressively its own rules mostly through bioethics, without having recourse to legislation. It is clear to me that the basic as-sumption that law should not take a position on moral issues is clearly wrong. There are certainly (and we must all be aware of it) some merits to the idea, that before legislating, society should take time to observe how new modes of behavior integrate into the existing social fabric, and not necessarily jump the gun with immediate action. This, however, in my opinion, raises perhaps a slightly different, although related issue: that of the timing of legislation. It does not, in my opinion, reflect as such on the role of law itself and cannot be seriously used as an argument to the effect that law should stay away from moral or ethical judgment. In a democratic society, law is, and always will be, a privileged form of expression of a general public moral and social consensus.

What is interesting in those two types of reactions is that, most of the time, if not always, the role of law is viewed solely in terms of a binary logical process, which consists of fixing, as clearly as possible, what should be allowed and what should be prohibited. It is easy to fall into the trap of assessing the role of law solely in terms of do’s and don’ts, or in terms of permission and punishment. The role of law, of course, is not limited to that and its response to biological and scientific challenges cannot and, indeed, must not be confined within the limits of criminal law. Civil or private law, as well as administrative law, also have an important role to play.

How far, then, should the law control and monitor medicine and biology? It is perhaps easier to attempt an answer by first exposing a certain number of myths related to both law and medicine, which have, in the past, either created unreasonable expectations or considerably deformed the role of the law.

Insofar, as law is concerned, the first myth, it appears to me, is the myth of its omnipotence. We have already addressed that problem earlier, in a more specific way, in relation to the role of criminal law and of legislative action as a form of social control. Law, I think we all realize, is but one technique amongst many others, to resolve social conflicts. I do not think I need to dwell much more on that first point: law, as a whole, and legislation by itself, cannot solve all problems; it never has and never will. It remains an important, but blunt and imperfect, instru-ment of social control.

A second myth concerns the respective roles of legislation and jurisprudence in the regulation of the medical practice. We have also already discussed that problem, but in a general way. Some will argue that very little, or even no legislation, is needed, and also that, because of the need for adaptation and great flexibility, courts are to be preferred as better tools of social control.

Scientific and medical areas deserve, I believe, special consideration because they raise concerns at two different levels of analysis. Faced with the social effects of new medical discov-eries, society first has to determine and decide on their legality. Courts, of course, could also, and will eventually, if asked to do so, decide this basic issue. It does not follow, however, in my opinion, that because courts could provide an answer, they should necessarily be entrusted with this task. It seems to me that, in such matters, it is up to legislature to take its responsibility for the following reasons.

First, the control of medical and biological discoveries implies fundamental, social and ethical judgments, which can only, in my opinion, be achieved through a truly collective, democratic, open debate and political process.

I would argue that it is preferable that this whole network of delicate social and ethical issues be solved by and through the community as a whole, after an open, democratic and general debate with clearly delineated options, rather than by a judge or even a whole court, a propose a particular case. Judges should not be saddled with a task that they are not prepared to assume: that is, deciding between sometimes competing or opposing scientific controversies on the one hand, and, on the other, fixing for the social group as a whole what acceptable ethical standards are. For most of these questions, a public debate of the issues should not and cannot be limited to a single judicial debate. There simply has to be a more general and open discussion. One of the very important tasks that society will have to assume in the future will be to organize and rationalize the process of an open democratic debate on key issues.

Secondly, medical and scientific progress, even when extremely valuable in terms of the promotion or gathering of scientific knowledge and data, is not necessarily good or valid in terms of ethical and social standards. In other words, the benefits it brings to science and knowledge are not necessarily equal or compatible with those of society as a whole. Social advancements cannot be measured only in terms of promotion of scientific developments. These developments, like many other initiatives, must remain compatible with larger societal goals. In that sense, all medical achievements, not all scientific discoveries are necessarily good for society.

Society and law cannot, without some form of critical appraisal, purely and simply endorse the unquestioned satisfaction of human fantasies and desires promoted by medicine and sciences. As a matter of fact, society, through its legal system, has the fundamental responsibility of channeling scientific and medical developments. Law is, and should always remain, directly concerned with the effects and consequences, on society as a whole, of the practical applications of scientific discoveries.

We thus come now to the crux, the pith and substance of the matter: What should the law do? What can it do, and how should it do it? There are, I must admit to you quite frankly, no easy or short answers to these questions, and from times immemorial that very issue has, indeed, been discussed by lawyers, philosophers, theologians and ethicists. What I will attempt very modestly, in those few remaining minutes, is to give you what I personally as biomedical and technological progress.

First, it seems to me that law has to strike a happy balance between too much or too little intervention. On the one hand, it cannot, in a democratic society, give biology, medicine and science a blank-check and rely on them alone for self-regulation and self-discipline, again, because the law is not only concerned with regulating science, but with preserving and promoting the social order as a whole. On the other hand, it certainly ought not to over-legislate, or even worst, over-judicialize the decision-making processes of science and medicine. I do not think, for instance, that it is for judges, as a matter of course, to routinely decide who should live and who should die or when treatment should be administered or withheld. Medical and scientific decisions are not, in my opinion, best achieved through our adversarial judicial system, but rather through negotiation and compromise with the help of rules from bioethics. The growing importance of clinical ethics committees reflects that fact. It is only when and if a conflict arises between those who have to take the decision (for instance, between the physician and the family) and when and if this conflict cannot be resolved, that the impartial arbitration of a court of justice should be resorted to.

Second, law is a form of tyranny in the sense that it does restrict individual freedoms. A democratic and pluriethical society requires that it should only, in most cases, set large and flexible general directions, leaving the largest possible margin for individual initiative and freedom. Legislative actives should thus, overall, be minimal, but should nevertheless exist. Law must be concerned with social evolution and the definition of the type of society that our children will want to live in, tomorrow.

Third, the law should not hesitate to regulate what could easily become unacceptable exploitations or caricatures of medical and scientific discoveries and knowledge. Take for instance the rules concerning organ transplant. In Canada, we are sadly missing donors of kidneys or other organs and a large number of persons die every year because surgeons are unable to recruit suitable donors. There is little doubt that a completely free market economic model for organ donations would probably go a long way to relieve that shortage. Yet, we are not ready to accept that poor or underprivileged people be allowed to sell their kidneys simply to pay their debts or to feed their families.

Fourth, the law should not, in scientific matters, necessarily try to anticipate the problems and react before they actually materialize. In certain cases, however, the degree of predictability is so high that it is better to foresee than to remedy. This, I believe, however, is still the exception, not the general rule, and requires on the part of the legislator a good sense of perception.

To sum up, the law must first arbitrate the ever present conflict between collective and individual rights and concerns; the second, decide generally what can and cannot be done by science; and, finally, through its judicial process, act as a last resort control mechanism for individual conflicts and the repression of unacceptable behavior.

I believe, however, that we will see, in the future, biology, science and medicine develop a much stronger set of self-control mechanisms and become more and more dependent upon international regulations. These two processes will probably go a long way to alleviate the task of our national legal system.

We are truly privileged to live in a society that is witnessing an incredible and fascinating number of behavioral, social and cultural changes brought about by the progress of science and technology. Let us hope, to conclude, that our democratic legal institutions and traditions will, as they have in the past, be able to answer that challenge.