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Law, Bioethics and Biomedicine –
Towards a Healthier Interaction
In matters of medical decision-making and policy-making, and
despite a growing respect for interdisciplinary cooperation, there
remains a strong current of misunderstanding, suspicion and anta-
gonism in the claims and accusations made by practitioners and
academics in law, bioethics and medicine.
Up to a point professional rivalry and even adversarial manoever-
ing are clearly inevitable, and probably healthy. They can contribute
to a better professional self-definition, the sharpening of each pro-
fession’s special skills and tools, and even to the better protection
of the rights of the perplexed patient being courted by these three
competing suitors. Professions and disciplines, like virtues, need a
degree of testing in an adversarial context if they are to have stamina
and influence. For as Milton wrote of virtue,
I cannot praise a fugitive and cloistered virtue, unexercised and un-
breathed, that never sallies out and sees her adversary, but slinks out
of the race where that immortal garland is to be run for, not without
dust and heat.’
But beyond a certain point it is arguable that inter-professional
struggles for ascendancy betray a dangerous degree of ignorance
about the limited, but necessary, contribution of each dimension –
legal, ethical and medical –
in the arena of decision-making,
policy-formulation and values-sorting. It is dangerous because in
so far as such antagonism is based on ignorance it further delays
productive interaction between them and retards the evolution of
just and humane health-related principles, policies, laws, structures
and processes. The ultimate losers continue to be individual patients
and society generally.
This paper will first consider briefly some signs of this pro-
fessional antagonism, and then, in greater detail, some new issues
which urgently invite each of our three disciplines to interact more
peacefully and productively.
I. Some antagonisms and exaggerations
Consider, for example, this view of lawyers by a Canadian
physician:
Utter the dread word “lawyer” to the average Canadian physician and
the organized response will leave little doubt of his mental image … a
‘Areopagitica (1644).
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picture of a rapacious and blood stained vulture, ready to swoop with-
out warning on the hapless and defenceless body of an innocent physi-
cian… . There must be very few doctors who, after an unsought con-
frontation with the Canadian legal system, feel that they have been fairly
done by.2
This picture is plainly more colourful than accurate. As the
recent Annual Reports of the Canadian Medical Protective Associa-
tion indicate, relatively few Canadian doctors are “swooped upon”
by the law, as compared to doctors in some other countries and
compared to some other professions in Canada, and very few are
successfully sued. In view of these outcomes and the access of
most physicians to more experienced legal services than the average
patient can afford, it is not always clear whether it is the patient
plaintiff or the defendant physician who is “hapless and defence-
less”. In any case, patients, not lawyers, sue physicians. In the final
analysis, the lawyer only works for the aggrieved patient.
If the physician’s self-perception as an increasingly emasculated
quarterback is somewhat simplistic, then so too is the self-percep-
tion of some legal writers and bioethicists. Consider the typical
views of a legal writer:
[Ljawyers, who in centuries past have abdicated the role of ‘attorneys
of the poor’ to the medical profession and others, have an affirmative
duty to insert themselves into the medical care delivery system to insure
that human rights are not the victims of medical progress. When in-
dividuals are sick, dying, or both, they are perhaps least able to protect
their own rights 3
[T]he attorney can ask questions that will help to define what actions
need to be taken to insure that the decisions involved will be in the best
interests of his client or clients … the strategy is for the lawyer … to
enter the decision-making process before a ‘wrong’ has been done …
.4
Are human rights and medical remedies compatible? In a society that
values both human rights and medical progress, it should be disturbing to
civil rights lawyers that the most eloquent voices raising this question
come not from the bar but from the scientific community itself ….
Civil rights lawyers have a duty to define the implications of scientific
developments for the individual and society.5
It is, of course, correct to claim that law, courts and lawyers
have crucial roles to play in medical decision-making. But one is
made uneasy by a contention that without the increased presence
of lawyers, the rights of patients will go undefended. It is surely
2 Emson, The Worm Should Turn Canadian Doctor (May, 1980), 26.
3 Annas, Medical Remedies and Human Rights: Why Civil Rights Lawyers
Must Become Involved in Medical Decision-Making (1972) 2 Human Rights
151, 152 (emphasis added).
4Ibid., 157 (emphasis added).
5Ibid., 165 (emphasis added).
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unfair and inaccurate to imply that physicians, families and others
tend as a general rule to put at risk the rights and interests of
their patients or that they have less will than lawyers to know and
protect patients’ rights and interests.
Second, it is not at all clear why lawyers should be “disturbed”
that scientists and physicians, rather than lawyers, are raising
questions about rights and values. One tends to find such examples
more encouraging than disturbing. Surely what matters most is
that such concerns are raised, not which particular discipline raises
them. One could only be disturbed at signs of physician awareness
of the implications of the various uses of medical technology if one
believed that physicians should stick to “values-free” science and
leave concern for values and rights to others, especially lawyers.
One of the prevailing temptations in bioethics is to imagine
that as a discipline it is sufficiently mature and coherent to provide
medicine, law and society with final and compelling arguments to
establish the moral parameters and directions for every biomedical
issue. Such is the open or hidden assumption in much biomedical
writing – not surprisingly for a discipline existing only some ten
years, and including within its scope subjects as complex and varied
as death and dying, genetic screening, organ transplantation, be-
haviour modification and allocation of scarce resources, the facts
suggest otherwise. A more accurate reading of the biomedical scene
is probably the following:
The rapid growth of biomedical ethics is reflected in the theoretical
disarray that exists in the field. A vast range of subjects is included under
the heading of biomedical ethics, but these subjects often are discussed
in isolation. No overall conceptual scheme exists to unite these topics or
to ground a coherent theoretical approach to them. In short, from a
theoretical perspective biomedical ethics is a hodge-podge.0
A number of seldom-acknowledged factors have been suggested
as contributing to this lack of coherence. 7 One is the variety of
normative approaches and views advanced on any issue. Among the
competing and very different moral theories and approaches are:
the theological approach, situation ethics, consequentialism, rule
utilitarianism, rule deontology and others. Each approach has its
influential and articulate spokesmen and promoters who come to
very different conclusions on the basis of different premises. There
is even a real danger that the very emergence of bioethics as a new
and distinct discipline, subdivided from moral philosophy and moral
theology, could further promote and encourage the already over-
6 Hoffmaster, Biomedical Ethics in Canada (unpublished ms., 1979), 1.
7Ibid., 3-24.
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specialized and splintered approaches to health care and health
policy.8
Another exaggerated claim which sometimes emerges in bioethical
writing is that because a particular act is held to be morally right
or wrong, one need not weigh other and new factors to conclude
that therefore there should be a policy or law permitting or pro-
hibiting that act. Moral considerations are, of course, very relevant
in the formation of policy but so are concerns such as the degree
of public acceptance of any particular moral stance, the cost and
likelihood of enforcement, and the potential for further abuse
resulting from a new policy or law.
II. Some real problems and challenges
So far we have only indicated some examples of minor irritants,
disciplinary pretensions and unilateral claims. To a large degree
they are only distractions from the larger purposes and problems
which invite an escape from parochialism and the realistic inter-
action of all three perspectives. Let us turn now to what are
arguably three of those fundamental issues.
A. Law v. legalism
A first and fundamental issue relevant to our biomedical context
is that of law versus legalism. Some attention to biomedical decision-
making and policy-making from this perspective is instructive. It
serves as a reminder that health policy and law are small parts of
a larger scene and not at all immune from the latter-day trend to
obscure the values-expressing role of law and policy behind a
thickening screen of regulatory and conventional rules.
Several factors have been suggested as combining in our times
to weaken the moral claims of law and, consequently, our respect
for it’ It is arguable that by extension the same factors and results
apply to policy-making generally, whether in the form of law, quasi-
law or guidelines. The first of these causes is the large amount of
law which regulates behaviour only because some order is needed,
not because the behaviour in question is seen by the regulators or
the regulated as right or wrong. As one legal commentator put it,
[m]odern societies are so complex and so divorced from organic order
that they need a high degree of amoral, inorganic order – order which is
8 See, e.g., Steinfels, Against Bioethicists (1976) 6 The Hastings Center Report
(No. 2) 18.
0 The three (actors which follow were suggested by Wexler, The Intersection
of Law and Morals (1976) 54 Can. Bar Rev. 351, 356-9.
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neither tied to recurrent, inevitable natural phenomena, nor cloaked in
…. People tend to be blas6 about rules
religious or moral imperatives
without moral content … we do not invest them with much, if any, moral
authority and most people are not ashamed to disobey them occasionally.10
It hardly needs saying that there is a vast and growing amount of
health-related law and policy which fits this category. It may or
may not be avoidable, but it is at least regrettable.
A second cause is that the involvement of the law in many se-
riously harmful areas tends to be selective and biased. Environ-
mental pollution, false advertising and resource prodigality to a
large degree escape legal regulation and sanction. It is increasingly
argued that there are a number of acts and techniques in the
biomedical field which fit in this category, and should at least be
more effectively regulated to prevent abuses; examples include
genetic screening, DNA research, non-consensual sterilization and
others.
A third cause of the narrowing of the interaction of law and
morals, and consequently of a weakened moral claim of law, is that
some acts still prohibited by law because they were once considered
immoral are no longer so considered by a large section of the
population. It is argued, for example, that the continued illegality
of marijuana smoking promotes callousness and lying and further
erodes the moral claim of law generally.
In the biomedical field as well there may be some laws and
policies in this category, and if so ‘they should be seriously recon-
sidered lest their continued illegality merely encourages the sweep-
ing of the acts and the problems under the rug. This was once the
case with abortion and with consensual non-therapeutic steriliza-
tion.” Many now argue that voluntary active euthanasia in some
limited instances is not wrong and should no longer be considered
illegal for fear that otherwise such acts may be concealed and done
covertly, making them inaccessible to moral and legal limitations
and standards.
A conclusion to be drawn from all the above is that law and
morals in the biomedical field need each other as much as ever,
and barriers between them in the form of prejudice or ignorance
should be replaced by vigorous interaction. Delusions of self-suffi-
ciency notwithstanding, without the influence of the other, each
perspective is weakened. For its part, law needs the influence of the
value sciences, and should attempt to articulate the values it is
10 Ibid., 356.
11 On the legality of consensual non-therapeutic sterilization for contraceptive
purposes, see Cataford v. Moreau [1978] C.S. 933.
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COMMENTS – COMMENTAIRES
1025
underlining or protecting if it is to earn respect and not degenerate
into legalism. But the value sciences, including bioethics, need the
influence of law in order to give values, ethics and religion a social
dimension lest they degenerate into vague idealism or privitistic
religiosity.’ 2 Harold Berman of Harvard Law School expressed this
point and challenge clearly. Using the word “religion” in its broadest
sense, that is society’s intuition of and commitment to the meaning
and purpose of life, he wrote the following:
Law is not only a body of rules; it is people legislating, adjudicating, ad-
ministering, negotiating –
it is a living process of allocating rights and
duties and thereby resolving conflicts and creating channels of coopera-
tion. Religion is not only a set of doctrines and exercises; it is people
manifesting a collective concern for the ultimate meaning and purpose
of life.13
Among bioethicists and physicians a healthy suspicion of legalism
can sometimes be stretched too far, and an approach proposed as
superior to legalism is sometimes capable of coping only with
individual cases and not the social and institutional factors which
provoke the recourse to “legalistic” defences by patients. An example
is the critique by Professor John Ladd of what he calls a legalistic
ethic of rights. 4 He objects to the appeal to moral rights which
share the logical properties of legal rights, that is their peremptory
nature, the impersonal and adversary relationship they presume,
and the right-ower’s duty to do what the right-holder demands,
regardless of other considerations. For Ladd, appeal to these “legal-
istic rights” threatens the physician-patient relationship, which
ideally should be neither peremptory nor adversarial. Instead he
proposes an “ethics of responsibility”, based upon the patient-
12 The concentration in this paper on only bioethics (including elements of
moral philosophy and moral theology) as the “source” of moral reflection
and values-sorting, is not meant to suggest that there are not other non.
academic, non-professional sources as well. Of course there are. In a paper
with wider parameters serious attention would also have to be paid for
instance to what Peter Berger and Richard Newhaus call mediating structures
–
family, Church, neighbourhood and voluntary associations. They all have
essential roles to play in providing meaning and values both to private life
and to the “mega structures” of public life: see Berger & Newhaus, To
Empower People (1977). In a sense that study continues and makes more
specific Lord Devlin’s point that while there is a role in law reform fo
professional moral argument by moral philosophers, in the final analysis,
when opinions differ as they must, legislation with a moral content should be
determined by the wishes of “ordinary” people.
13Berman, The Interaction of Law and Religion (1974), 24.
14Ladd, “Legalism and Medical Ethics” in Davis, Hoffmaster & Shorten,
Contemporary Issues in Biomedical Ethics (1978), 1, 4.
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physician relationship as a personal relationship, and which seeks
to respond to the patient’s needs rather than interests. A physician
and patient using this ethic presumably are able to weigh and
balance, in the context of consultation and dialogue, many more
and more personal factors than simply the existence or non-exist-
ence of a right.
There is much to be applauded in Ladd’s criticisms of the limita-
tions of an ethics of rights and his emphasis on the patient-physician
relationship. But, as has been observed,15 it is not obvious that a
theory of moral rights must be legalistic, or that the patient-physi-
cian relationship really is a personal relationship like that of
parent-child or husband-wife. The physician’s role inescapably has
a large dimension of the social and the professional. Ladd himself
admits that patient appeals to rights are particularly valuable as a
protection from impersonal decision-making in institutions. Given
the social, professional and institutional dimensions of a physician’s
role, appeal to rights, even within the patient-physician relationship,
will inevitably be sometimes valuable and necessary.
The suggested alternative remedy, an ethics of responsibility,
by focusing only on individual cases, is directed more at a symptom
than the real cause of the malaise. As another moral philosopher
has observed,
[tjhe focus of medical ethics should be the institutional arrangements
that make an ethics of rights an indispensable weapon in a patient’s moral
armamentarium. One needs to rise above the individualistic, case-oriented
approach to medical ethics, an approach which Professor Ladd’s ethics
of responsibility exemplifies, and address the more global questions of
institutional design …
. The crucial question then is: how can one
change the impersonal decision-making processes of institutions so that
morally sensitive decisions emerge?10
If we agree that bioethical thinking sometimes tends to abstract too
much from questions of structure, process and institution, by con-
centrating mainly on the individualistic dimension, then we have
further confirmation of a value-science’s need to interact with
law –
not just law as positive rules or legalism but as generally
concerned with societal structure and cohesion.
But the problem and challenge goes well beyond hospitals.
Another area in which one finds examples of the impersonality
and insentivity of institutional decision-making is the “risk regula-
tion” of hazardous products and substances. There is a growing
amount of such regulation, but also an increasing public impatience
15 See Hoffmaster, “Comments on ‘Legalism and Medical Ethics”‘ in Con-
temporary Issues in Biomedical Ethics, supra, note 14, 37, 41.
1 Ibid., 42.
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with the cloak of scientific objectivity and expertise which covers
both the value-choices and the large areas of scientific ignorance
which have gone into determining levels of “acceptable” risk. Here
too is a place for law and courts to contribute to the evolution of
more sensitive and open decision-making processes. As David Baze-
lon recently wrote,
the sphere of fact –
the sphere of values –
In the scientist’s realm –
courts can ask that the
data be described, hypotheses articulated, and above all, in those areas
where we lack knowledge, that ignorance be confessed. In the political
realm –
courts can ask that decision-makers
explain why they believe that a risk is too great to run, or why a
particular trade-off is acceptable. Perhaps most important, at the interface
of fact and value, courts can help ensure that the value component of
in quasi-scientific
decisions
jargon.’7
is explicitly acknowledged, not hidden
B. Resolving new rights and values conflicts
A second problem area, equally so for law , bioethics and bio-
medicine, is the absence to date of any generally acceptable theory
test to justify choices between competing values and rights in
difficult cases. Increasingly, the sort of medical cases and issues
brought to or raised by health professionals, bioethicists, courts and
legislators are those which combine diagnostic and prognostic un-
certainties with new, or at least newly complex, rights and values-
conflicts. The most difficult of such cases
involve incompetent
persons unable to make their own choices betvween two or more of
their own rights, values or interests, one of which has traditional
legal support and superiority, whereas the others are attractive
(or at least insistent) new arrivals on the scene but with question-
able legal pedigrees.
Given that contemporary bioethics (or moral philosophy) does
not yet really have a convincing way of testing conflicting moral
views,’ or a generally acceptable theory of value, it cannot presently
be of much help to law in these truly new and challenging cases. As
for courts, they cannot as easily as bioethics escape concrete deci-
sions, but in some judgments one finds little by way of compelling
theoretical justification for the preferred right, value or interest
on which the decision is based. Two examples might illustrate these
points.
17 Bazelon, Risk and Responsibility (1979) 205 Science 277, 279.
18Many such methodologies have been proposed, such as Rawls’s method
of “reflective equilibrium” (Theory of Justice (1971), 46-53), but it cannot be
said of this or any other proposed methodology that it has gained general
acceptance.
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The first example has to do with what American courts have
come to call “actions for wrongful life”. One instance of such an
American action and case is Gleitman v. Cosgrove.9 The mother had
German measles during pregnancy, and a child was born with birth
defects. The parents sued the doctors on behalf of the infant,
claiming that the doctors should have informed the parents of this
possibility and that had they known of it the mother would have
had an abortion. The claim was for damages on behalf of the infant,
on the grounds that he would have been better-off not being born.
But it was held that:
in tort actions
The normal measure of damages
is compensatory.
Damages are measured by comparing the condition plaintiff would have
been in, had the defendants not been negligent, with plaintiff’s impaired
condition as a result of the negligence … This Court cannot weigh the
value of life with impairments against the non-existence of life itself.
By asserting that he should not have been born, the infant plaintiff makes
it logically impossible for a court to measure his alleged damages be-
cause of the impossibility of making the comparison required by com-
pensatory remedies.2 0
A recent Quebec case involved a negligently performed steriliza-
tion, as a result of which an unwanted (though healthy) child
was born: a claim for $20,000 was advanced on the basis that the
infant plaintiff was brought into the world against the parents’
wishes, but here too the Court held:
Il est bien impossible de comparer la situation de 1’enfant apr~s sa nais-
sance avec la situation dans laquelIe il se serait trouv6 s’il n’4tait pas
n6. Le seul dnonc6 du probl me montre ddjh l’illogisme qui l’habite.2′
For present purposes the point is that contemporary bioethics
or moral philosophy has little help to offer law either by confirming
or challenging the “impossibility” of determining damages based on
the comparison implicit in “wrongful life” suits. There is no widely
acceptable and coherent moral theory to deal with such questions
as whether and in what circumstances life itself may be an injury,
whether there may be a duty not to give existence to another, and
whether abortion in these circumstances of known pre-natal injury
is permissible.2 Bioethicists and others sometimes assume that it
is occasionally preferable for a child not to have been born, but they
l9 Gleitman v. Cosgrove 227 A. 2d 689 (N.J. 1967).
20 Ibid., 692.
21 Cataford v. Moreau, supra, note 11, 940.
22 Given the weakness of moral theory, the debate tends to focus on
“catch-all” concepts such as “quality of life”, but one of the difficulties with
such concepts is that they allow no uniformity of meaning: for more on the
subject of “quality of life”, see Keyserlingk, Sanctity of Life or Quality of
Life (1979).
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seldom offer sufficient argument to support that contention or
norms with which to gauge that decision in individual cases.
It should therefore not be surprising that courts have so far
more or less summarily ruled that comparison in question out of
order only on the basis of the traditional measure of compensatory
damages, without delving into the possibility of alternative measures
based on a fresh study of legal and moral sources. But whatever
the eventual policy outcome of more ethical and legal thinking on
this issue, it is clearly overdue. Given the increasing ability to
determine pre-natal injuries or defects, the pressure for more fun-
damental and compelling moral arguments and legal stances on the
issue of “wrongful life” will undoubtedly increase.
A second and related example of a hard case involving choices
between a person’s conflicting rights, values and interests, is that
of the sterilization of incompetent mentally handicapped persons
for contraceptive purposes. Until a recent Canadian appellate de-
cision, the relatively few legal judgments on this issue have assumed
that, except for therapeutic reasons, the right of such persons to
procreate was absolute and inviolable and could not be made to
give way to any other right or interest of that handicapped person.
Therefore courts did not see it within their power to authorize such
sterilizations when requested.
The Prince Edward Island Supreme Court decision, Re Eve 24
typified that legal stance. “Eve” was 24 years old, mildly to moder-
ately retarded, and suffered from extreme expressive aphasia. The
medical and parental evidence established to the satisfaction of the
Court that: there had been no perceptive improvement for the past
ten years; Eve was capable of being attracted and attractive to the
opposite sex, but incapable of functioning as a mother and caring
for a child; there would be a strong probability that any child she
bore would have to be placed for adoption. Eve’s mother felt that
2 3 Tristram Engelhardt is an example of one who holds that there are
both instances of wrongful life and wrongful continuance of existence, with
corresponding rights and duties. But he argues that the concept of tort for
wrongful life is transferrable to an injury for continued existence, without
either acknowledging that damages for “torts for wrongful life” have never
yet been awarded in fact, or providing any moral argument as to how to found
and apply such a tort and its inherent comparison between non-existence
and actual life: see Engelhardt, Euthanasia and Children: The Injury of
Continued Existence (1973)
83 The Journal of Pediatrics 170, and “Ethical
Issues in Aiding the Death of Young Children” in Kohl, Beneficent Euthanasia
(1975) 180, 185-92.
2 4Re Eve, reported sub nom. Re E (1979) 10 R.F.L. (2d) 317 (P.E.I.S.C.).
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being almost sixty years old she would not by herself be able to
look after any child Eve might have, and that the emotional effects
on Eve of a pregnancy and birth might be very detrimental. She
therefore applied to the Court for authorization to consent to a
tubal ligation on Eve. McQuaid J. held in part:
The Eves of this world, regardless of how retarded, are, nevertheless,
persons with rights which the courts must preserve and protect. One of
these rights is the inviolability of their persons from involuntary tres-
pass. This right supersedes that referred to by Dr. Beck as the right to
be protected from pregnancy. While the preservation of this right might
well, and even predictably, result in no little inconvenience and expense,
and indeed, even hardship to others, the Court must, regardless of its
own natural sympathy to those others, ensure that the law have the
care of those who are not able to care for themselves, and ensure
preservation of the higher right … [emphasis added].
But of particular interest for the purposes of this paper is that
no coherent argumentation or theory is offered as to exactly why,
in non-therapeutic situations, the right to procreate must always
“supersede” other rights such as being protected from pregnancy,
and why the former is necessarily a “higher” right than the latter.
To imply that the basis for this conclusion is that the law has a
traditional and fundamental interest in protecting from “involuntary
trespass” appears somewhat to beg the question. The issue after
all is precisely whether sterilization, given the circumstances of this
kind of case, really would be “involuntary trespass” in the ordinary
meaning of that term.
McQuaid J. gives much attention to earlier cases dealing with
this issue? 5 But even if the facts of those cases matched the facts
of the Eve case (which on appeal the Court felt they did not),
those earlier judgments also provide little by way of analysis or
justification. For example, in the case of Re D., Heilbron J. made
the following observation, cited as relevant and normative in the
Eve case:
The type of operation proposed is one which involves the deprivation
of a basic human right, namely the right of a woman to reproduce, and
therefore it would, if performed on a woman for non-therapeutic reasons
and without her consent, be a violation of such right.2 0
But on appeal of the Eve case the Prince Edward Island Supreme
Court reversed the lower court’s decision and held that the court
is competent to authorize a non-therapeutic sterilization and con-
25 Especially two English cases: Re X (a Minor) [1975] Fain. 47, [1975] 1 All
E.R. 697 (C.A.); Re D (a Minor) [1976] Fam. 185, [1976] 1 All E.R. 326.
26 Re D, supra, note 25, 193 (Fain.), 332 (All ER.) (emphasis added).
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COMMENTS – COMMENTAIRES
sented to it in the case of Eve.’
It is beyond the scope of this paper
to indicate all the considerations which went into that judgment,”
or to debate all the merits of the decision itself. But on the issue
of interest here, that of evaluating conflicting rights and providing
reasoned argumentation for the choice made, the appeal judges went
considerably further than the trial judge. For example, Campbell J.
reasoned, in part, as follows:
In the recognition of individual rights and in the process of according
them judicial application to specific circumstances, it would be unwise
and a travesty of justice to priorize in order of precedence a list of rights
applicable for all given circumstances. For example, the right to pro-
create must be given preeminence in a fact -situation as found in Re
D [because she was found to be improving and capable of marriage]
but the protection of the right to procreate would be a meaningless
gesture for a female who had lost her mind …
. Each case demands,
perforce, an objective but compassionate assessment of the relative facts
and circumstances and the rights and remedies as appropriately apply.
It cannot be taken as a rule of law that the inviolability of the person
from involuntary trespass supersedes the right to be protected from
pregnancy. Such a contention can only be sustained by the special cir-
cumstances which can be found to support it 29
In view of these special circumstances, Campbell J. concluded:
I am of the opinion that without the protection of a permanent steriliza-
tion the protected environment will become a guarded environment and
the loss to ‘Eve’ in terms of her social options and her relative freedom
would cause substantial injury of sufficient degree to meet the test.3 0
We may not have here, and should not reasonably expect, a
detailed and coherent methodology for choosing between conflicting
rights, values and interests. But we do have the acknowledgement
that the ranking of rights is not frozen in one mold and does need
to refer to circumstances and consequences. We do at least have the
acknowledgement that it is no longer sufficient in the face of com-
plex new biomedical challenges and conflicts to maintain with little
further distinction or consideration that the primary interest of
appeal before the Supreme Court of Canada.
-tRe Eve (1980, 1981) 115 D.L.R. (3d) 283 (P.E.I.S.C., in banco), now in
2 8 Considerable reference was made in the Eve appeal to some of the
analyses, norms and criteria advanced by the Law Reform Commission of
Canada in Sterilization: Implications for Mentally Retarded and Mentally Il
Persons (Working Paper No. 24, 1979): see supra, note 27, 304-10 per MacDonald
J., dissenting in part. The specific norms or limitations formulated by Campbell
J., for example, were these: it must be -shown that the real, the genuine,
object is to protect the child; there must be no overriding interest the other
way; there must be a likelihood of substantial injury to the child: see supra,
note 27, 318-20.
9 Supra, note 27, 317-8.
30 Ibid., 320.
McGILL LAW JOURNAL
(Vol. 26
law is in protecting autonomy, self-determination and physical in-
tegrity. That remains true, but to stop there is to remain at too high
a level of abstraction, generality and absoluteness to respond ade-
quately with compassion and sophistication to the complexity of the
human situation and the full range of interests, rights and needs
presenting themselves for approval, balancing and choice. Among
these new claimants for the title of “right” are, for example, the
“right to die” and the “right to be protected from pregnancy”. As
Campbell J. observed in the Eve case:
In the past few decades, society’s perspective of the mentally retarded
has undergone dramatic changes and we have seen the mentally handi-
capped in recent years raised from disgrace to the sunlight of the class-
room, the job market and the company of their peers. These new found
privileges call for new found responses in the law3X
There are still other considerations which could be weighed
in such cases. One is the issue of the “rights” of potential offspring
of mentally handicapped persons, and the direct relevance of those
rights to decisions about sterilization. Most legal and much bio-
ethical thinking about sterilization (and the Eve case is an example)
tends to weigh the effects of child-rearing and child-bearing only
as they will affect the rights and interests of the handicapped
potential parent being considered for sterilization, but not in so
far as the quality of life and rights of potential offspring are also
directly relevant to that decision. If the rights of potential children
were one of the justifiable and central concerns, then one could
perhaps recognize judicially a moral argument to the effect that
when there is a strong likelihood that potential offspring will inherit
a serious genetic defect, then the interest of that child in not being
inflicted with that defect is a further reason for the sterilization of
the mentally handicapped and incompetent potential parent.32
It should probably not be surprising that law does not acknow-
ledge a quality of life interest of potential offspring in sterilization
decisions for mentally handicapped persons
likely to transmit
serious genetic defects. One good reason is undoubtedly to be found
31 Ibid., 319.
32 Of course there would be other factors and safeguards to consider as
well, those which should apply in any involuntary non-therapeutic sterilization,
as proposed for instance by the Law Reform Commission of Canada in its
working paper, referred to above (note 28). The first of these safeguards
is the careful determination that the mentally handicapped person is in fact
incompetent to consent. Among the minimum criteria are these: that the
individual is probably fertile, of child-bearing age and sexually active, and that
the sterilization will not cause physical or psychological damage greater than
the beneficial effects to the individual.
1981]
COMMENTS – COMMENTAIRES
1033
in past legal abuses based on faulty genetic theory and discrimi-
natory policies. Another is that the whole question of the rights of
potential human life has long been one of the most difficult of legal
questions as witnessed for some time in the issue of abortion and
more recently that of the “wrongful life” suits referred to earlier.
But given today’s growing certainty about which serious genetic
defects are and are not transmissible, one suspects that the rights
of potential offspring as regards the sterilization of their mentally
handicapped potential parents is one of those biomedical problems
which will increasingly call for “new found responses in the law”.
C. Physic’ians and parents in the courtroom
A third challenge for law and biomedicine has to do with
clarifying the nature of the contribution of each of the three major
parties involved when a “substituted consent” issue is brought to
a court for decision – parents, physicians and the court itself. It is
instructive to consider the note of mutual antagonism and/or
exaggeration in the claims sometimes made by or for each of these
parties. The three actors at times have different expectations not
only about the outcome, but also about the process.
The special qualities claimed for courts are especially those of
detachment and objectivity. One legal writer disapprovingly de-
scribed such a claim as follows:
The ideal health care decision-maker is
‘objective’, “rational’, ‘detach-
ed’ … . Accordingly, the argument runs, it is appropriate in these situations
to have the decision made by an outsider who can more closely ap-
proximate the detached and rational ideal –
a judge, that is, who guides
his decisions by public norms in law.33
Another legal writer, approvingly, puts the matter this way:
A correct resolution … is more likely to come from a judicial decision
after an adversary proceeding, in which all interested parties have fully
participated, bringing in all their own perceptions, beliefs, and biases,
than from the individual decisions of the patient’s family, the attending
physician, an ethics committee, or all these combined3 4
It would be foolish to deny the positive aspects of detachment
and objectivity, and the appropriateness of these qualities brought
to bear on a conflict in the courtroom. What bothers one is the
implied assumption in both passages that decision-making in extra-
legal contexts, in the family and the medical profession for instance,
33 Burt, The Limits of Law in Regulating Health Care Decisions (1977) 7 The
Hastings Center Report (No. 6) 29.
34Annas, The Incompetent’s Right to Die: The Case of Joseph Saikewicz
(1978) 8 The Hastings Center Report (No. 1) 21, 23.
McGILL LAW JOURNAL
[Vol. 26
is only second-best because it is subjectively biased and unlikely
to be sufficiently objective to decide fairly and protect properly.
In effect, what is insufficiently appreciated by those observations
are the positive and protective features of parental bonding and
identification, features also to be found (though with differences)
in healthy doctor-patient relationships
in which the patient is
treated as a person and not as an object. Surely parent-child bonding,
identification and love can serve and have served the interests
of children very well, whether decisions are made entirely in the
family context, or whether, when the need arises, those characteris-
tics are drawn upon in the form of parental testimony in court.
Excessive bonding may of course lead to various forms of
paternalism, both from parents and from physicians. But parental
bonding is also the best protection against child abuse25 Clearly
parent-child or physician-patient bonding can sometimes be too
subjective to resolve all biomedical problems and conflicts. But
the detachment and objectivity of a court also has its limits and
potential for abuse. They are positive values, but alone or exaggerat-
ed they can lead to insensitive decisions. Viewed from the perspective
of a parent, this fear or danger could be expressed this way:
[Wihen a judge supervises parental decisions and thus accepts apparent
responsibility for the decision whether a child should donate his kidney
to a sibling or whether a comatose child’s respirator should be discon-
nected, the judge can act with the comforting knowledge that he and this
child are quite separate from one another –
that the child is not his, that
the consequences of this decision will not shape his family’s life and
his self-conception forever, that he is after all only applying ‘the rules’
with an impartial eye or even, as the popular image of Lady Justice
suggests, with blindfolded eyes.3 6
This view, like those cited earlier, is probably somewhat exag-
gerated and one-sided. Clearly it should not be a question of
“either” (courts and detachment) “or” (parents and bonding). Both
kinds of qualities, though with different stresses, should be welcome
in both contexts. Nor is it simply a question of more or less recourse
to courts, which is often the somewhat simplistic way in which this
problem is posed.
A brief and last look back at the case of Eve might help to
illustrate how both parental bonding and judicial detachment com-
bined, at least at the appeal level, to produce a decision which at-
tempted to be both just and compassionate.
35 See Raymond, Child Abuse: can bonding prevent it? The [Toronto] Globe
and Mail (Jan. 8, 1981), T-1.
36 Burt, supra, note 33, 32.
1981]
COMMENTS – COMMENTAIRES
At the trial level one could say that the keynote was detachment.
What especially counted was the rule. We may recall the words of
McQuaid J.:
While the preservation of this right might well, and even predictably,
result in no little inconvenience and expense, and indeed, even hardship
to others, the Court must, regardless of its own natural sympathy …
ensure the preservation of the higher right.37
But at the appeal level detachment was combined with compassion
and sensitivity. Though the parental and medical testimony weighed
was the same, it appears to have been given more weight at the
appeal level, both in terms of the mother’s pleas that pregnancy and
childbirth would be a heavy burden for the child she knew and
loved, and the doctor’s medical testimony, based on his long ac-
quaintance with Eve, supporting his view that the right to be pro-
tected from pregnancy should prevail.
In the words of Campbell J.:
Each case demands, perforce, an objective but compassionate assess-
ment of the relative facts and circumstances and the rights and remedies
as appropriately apply 38
E. W. Keyserlingk*
37 Supra, note 27, 328-9.
38 Ibid., 317 (emphasis added).
* Of the Law Reform Commission of Canada.
