American Bioethics: Crossing Human Rights and Health Law Boundaries George J. Annas OXFORD UNIVERSITY PRESS American Bioethics ALSO BY THE AUTHOR The Rights of Patients Judging Medicine Standard of Care: The Law of American Bioethics Some Choice: Law, Medicine, and the Market Coauthored Informed Consent to Human Experimentation: The Subject’s Dilemma (with Leonard Glantz and Barbara Katz) The Rights of Doctors, Nurses and Allied Health Professionals (with Leonard Glantz and Barbara Katz) Reproductive Genetics and the Law (with Sherman Elias) American Health Law (with Sylvia Law, Rand Rosenblatt, and Ken Wing) Coedited Genetics and the Law Genetics and the Law II Genetics and the Law III (with Aubrey Milunsky) The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (with Michael Grodin) Gene Mapping: Using Law and Ethics as Guides (with Sherman Elias) Health and Human Rights: A Reader (with Jonathan Mann, Sofia Gruskin, and Michael Grodin) George J. Annas AMERICAN BIOETHICS Crossing Human Rights and Health Law Boundaries 1 2005 3 Oxford New York Auckland Bangkok Buenos Aires Cape Town Chennai Dar es Salaam Delhi Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi São Paulo Shanghai Taipei Tokyo Toronto Copyright © 2005 by George J. Annas Exerpt from “Little Gidding” in FOUR QUARTETS, © 1942 by T. S. Eliot and renewed 1970 by Esme Valerie Eliot, reprinted by permission of Harcourt, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Annas, George J. American bioethics : crossing human rights and health law boundaries / George J. Annas. p. cm. Includes bibliographical references and index. ISBN 0-19-516949-2 1. Human rights—Moral and ethical aspects. 2. Medical laws and legislation—Moral and ethical aspects. 3. Medical laws and legislation—Moral and ethical aspects—United States. 4. Bioethics—United States. I. Title. K3240.A56 2004 174'.957'0973—dc22 2004045576 987654321 Printed in the United States of America on acid-free paper To Katie and David and their generation of human rights and health advocates This page intentionally left blank Acknowledgments American Bioethics continues my exploration of the relationships between bioethics and law begun in Standard of Care: The Law of American Bioeth- ics and continued in Some Choice: Law, Medicine, and the Market. As with these earlier works, I benefited greatly from conversations, debates, com- ments, and criticisms of my colleagues in the Department of Health Law, Bioethics and Human Rights at the Boston University School of Public Health, most especially Leonard H. Glantz, Michael A. Grodin, Wendy K. Mariner, and Winnie Roche. We have been together for almost two de- cades, during which time we have together explored and crossed tradi- tional academic boundaries, including those combined in our Department’s new name and in this book. It has been terrific, and our Dean, Robert Meenan, has been a strong supporter of our work. I also greatly appreciate the consistent support of Jeffrey House of Oxford University Press for all three books. Special thanks are due to Michael Grodin (again), with whom I founded Global Lawyers and Physicians, and with whom I have taught a course on “Human Rights and Health” for each of the past six years. Many of the ideas involving the new field of health and human rights grew out of this course, as well as our work with others in the field, especially the late Jonathan Mann, and our colleagues at the Harvard School of Public Health, Sofia Gruskin and Stephen Marks. An earlier version of Chapter 4 was coauthored with my colleagues Lori Andrews and Rosario Isasi, both of whom I continue to work with on issues of global governance of genetic technologies. I also get many ideas from my wife, Mary Annas, and our children, Katie and David, who give me some measure of confidence that their generation might not repeat many of the mistakes of mine. I am happy to dedicate this book to them. The exceptional staff of the Department of Health Law, Bioethics and Human Rights has always made manuscript preparation much smoother than it should be, and Emily Bajcsi was espe- cially instrumental in the preparation of this book. Earlier versions of most of the chapters in American Bioethics, Chapter 2 and Chapters 5 through 12, first appeared in the New England Journal of Medicine, and most of these were expertly edited by Marcia Angell. An earlier version of Chapter 3 appeared in the Emory Law Review, Chapter 4 in the American Journal of Law & Medicine (coauthored by Lori Andrews and Rosario Isasi), and Chapter 1 in Jonathan Moreno’s In the Wake of Terror. viii Acknowledgments Contents Introduction xiii I BIOETHICS AND HUMAN RIGHTS 1. Bioethics and Bioterrorism 3 2. Human Rights and Health 19 3. The Man on the Moon 27 4. The Endangered Human 43 5. The Right to Health 59 6. Capital Punishment 69 II BIOETHICS AND HEALTH LAW 7. Conjoined Twins 81 8. Patient Rights 95 9. White Coat Police 105 10. Partial Birth Abortion 121 11. The Shadowlands 135 12. Waste and Longing 149 [...]... globalized world, human rights will become the umbrella field under which the work done by both American bioethics and American health law will be linked and furthered The book is divided into two related parts The first, “Bioethics and Human Rights, ” deals with some of the major human rights issues of our day and looks at them from a bioethics perspective, with heavy emphasis on American bioethics... inform them and in this instance these two “universal” human codes reinforce and inform each other on the fundamental question of human equality and human rights The essays in this book explore specific questions in bioethics with a view toward crossing boundaries that have seemed to separate the field of bioethics from law, and more recently from human rights These borders are permeable and ultimately... bioethics It begins with 9/11 and the impact of terrorism on bioethics and moves to considerations of bioethics and human rights generally, the impact of new genetic technologies, international treaties and xvi Introduction bioethics, the right to health, and finally the death penalty and moral progress The second part, “Bioethics and Health Law, ” is focused on the bioethics and law boundary, but the attempt... BIOETHICS AND HUMAN RIGHTS This page intentionally left blank 1 ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ Bioethics and Bioterrorism A merican bioethics is often more pragmatic than principled, and quickly crossed both health law and human rights boundaries in response to 9/11 and our new global war on terrorism War and terrorism test our commitment to principles, especially legal principles, and can cause... Concluding Remarks: Bioethics, Health Law, and Human Rights Boundary Crossings 159 Appendix A: Universal Declaration of Human Rights 167 Appendix B: International Covenant on Civil and Political Rights 175 Appendix C: International Covenant on Economic, Social, and Cultural Rights 195 Appendix D: The Nuremberg Code 205 Notes 207 Index 237 “The voluntary consent of the human subject is absolutely essential.”... illustrate the overlap, and thus potential merger, of bioethics and human rights, at least as they relate to health Two of the examples are attempts to displace human rights for expediency, and the other illustrates an attempt (albeit a clumsy one) to respect human rights and bioethics The examples are the Bush-Rumsfeld decision to ignore the Geneva Conventions for the al Qaeda and Taliban prisoners... project The thesis of this book is that the framework and language of human rights, especially the Universal Declaration of Human Rights, provides American bioethics with a path to move forward The challenge for American bioethicists is to work with international human rights advocates as partners in imaginative ways to help make the world a more just and healthier place for all of us to live Boston July... rights law, but as set forth in the Universal Declaration of Human Rights, and even in two major subsequent treaties, it remains fair to characterize much of international human rights as aspirational in character The most important development in bioethics in the past decade has been its movement toward globalization, and this will ultimately, I believe, require the fields of bioethics and human rights. .. together—working synergistically to make the world a better place to live Taking human rights, health law, and bioethics seriously makes the goals of health and safety of the public more 3 4 Bioethics and Human Rights realistic, at least in democracies where public trust in government is essential to success 9/11 may be as important to the growth of American bioethics as World War II was to its birth Choosing Fantasy... national committees and commissions Second, as these examples suggest, American bioethics is about much more than “ethics,” it is about law and politics That is why, more than a decade ago, I subtitled my Standard of Care “The Law of American Bioethics,” noting that American law, not philosophy or medicine, is primarily responsible for the agenda, development and current state of American bioethics.” . American Bioethics: Crossing Human Rights and Health Law Boundaries George J. Annas OXFORD UNIVERSITY PRESS American Bioethics ALSO. Wing) Coedited Genetics and the Law Genetics and the Law II Genetics and the Law III (with Aubrey Milunsky) The Nazi Doctors and the Nuremberg Code: Human Rights in Human