Abstract
The Criminal Law and Bioethical Conflict: Walking the Tightrope provides a collection of 17 essays from an array of academic scholars and practitioners. The book considers the balance that exists between the goals of medical research and practice with the varying perspectives on the moral criteria that society imposes through the criminal law. The editors portray this book, where the British legal system is the predominate focus, as an opportunity for bioethicists and criminal lawyers to discuss across disciplines.
The four parts of the book frame the dominant issues as observed by the editors in the encounter between bioethics and the criminal law. Medically assisted dying is examined in the first part. The chapters present contrasting perspectives from a call by John Griffiths for decriminalization to an argument by John Keown that views intervention of the criminal law as being entirely appropriate and continue in a discussion by Richard Huxtable that offers a compromise of conceptualizing mercy killing within a necessity defense. The final chapter in this section presents a generalizeable framework for achieving principled compromise that could be used for any number of challenging policy discussions that demand concessions in the moral positions held by conflicting parties.
Respect for individual autonomy represents a core ethical principle of bioethics. However, the criminal law’s focus on the harm done to society rather than the victim per se presents a paternalistic approach that can prevent the preemption of an individual’s consent to acts that can lead to bodily harm. Thus, Part II considers the involvement by the surgeon author, Robert C. Smith, with patients presenting body integrity identity disorder (BIID), a desire to amputate an otherwise healthy part of their bodies. This chapter rejects the application of the criminal law, finding BIID to be through surgery a treatable disorder in the same way as gender identity disorder. In a second chapter, David Gurnham considers that the seemingly contradictory approaches of the criminal law in the United Kingdom have been guided by two different sets of gender discourses where individual autonomy will be respected for the decisions to engage in sexual encounters, which entail the infliction of grievous bodily injury, yet consent is insufficient where one party recklessly transmits HIV to another. Examined in a final chapter by Suzanne Ost and Hazel Biggs in this section is the applicability of the criminal law in sexual relationships, where there is an imbalance of power between individuals such as in a doctor–patient relationship.
The four chapters in Part III examine the uneasy relationship between science and society over scientific research and new technologies, where calls for stronger regulation include the use of the criminal law. The use of criminal law to provide a means of developing public trust, as opposed to being merely a regulatory mechanism, for the areas of human reproduction and human tissue is examined by Amel Alghrani and Sarah Chan in the first chapter. In the following chapter, Sara Fovargue observes an imperative need of the safeguard of the criminal law to allow the use of xenotransplantation, calling for specific legislation that will secure compliance with an effective xenosurveillance regime. Less health-threatening medical advances such as cognitive enhancing drugs are considered in the discussion by Nishat Hyder and John Harris in the next chapter, finding that the criminal law is an inappropriate mechanism to allow it to be used to stand between individuals and their tenacious desire for self-improvement. Clarifying the concept of entitlement to human dignity that could provide protection to individuals with dementia or in a persistent vegetative state, to infants and human embryos, Stephen W. Smith in the last chapter in this section argues that it is not a question of empirical proof about capabilities, but a question of value that is placed on the human entity and concludes that for determining harm, the concept of human dignity should be seen as a socially constructed value.
Part IV examines the suitability of the criminal law with its moral and jurisprudential postures to regulate ethical concerns and medical practice. Through the lens of abortion laws in England and in Northern Ireland in their two chapters, Margaret Brazier and Marie Fox discuss the limitations of the law and science to provide responses to difficult to answer questions involving the sanctity of life. Although Brazier concludes that there is a number of answers, which reflect diverging values, to the sanctity of life conundrum, Fox finds that the moral and health-related arguments favoring the termination of pregnancies make it wrong to criminalize these actions. Two more chapters engage the issue of the deference that might be due from the criminal courts to the medical professions when addressing medical errors. The criminal law does not represent the correct forum for addressing medical errors, such as those involving negligent as opposed to intentional harm, according to Jose Miola. David Archard considers the risks that doctors incur in their work on behalf of society and finds it difficult to see their errors as meriting a punishment that would be appropriate in other contexts. A subsequent chapter by John Coggon examines the reliance on the criminal law for advancing measures of public health. Brenda Hale, the first woman to sit on the United Kingdom’s highest court, considers in the final chapter the task placed upon the common law judge for balancing the moral and political controversies generated by the intersection of criminal law and bioethical challenges.
The book seeks to assess the role of the criminal law as a social institution confronting issues of moral significance in the technology and practice medicine. The editors do not purport to cover all issues of bioethics, and their focus on the function of the criminal law omits possibly much weightier subjects of moral concern such as the troubling economic commoditization of human genetic material and organs. Yet, the excellent discussion of the wide-ranging spectrum of issues will be of great value to students and scholars of the criminal law who will find these controversies within this moral and political context to require careful consideration.