Someone needing blood might one day sue you for yours, Yale law dean says

April 16, 1992|By Michael Hill | Michael Hill,Staff Writer

"Do you own your body?" was the simple question posed by Guido Calabrese. Don't be so sure you know the answer.

"It sounds like science fiction," says Mr. Calabrese, dean of the Yale Law School, speaking on whether the state has a right to take a piece of your body. "But this question has already become real."

Delivering the Solomon Liss Memorial Lecture at the University of Baltimore Tuesday, the legal scholar argued that society will be grappling with this question in the near future.

He cited a Pennsylvania case in which a man needed a bone-marrow transplant to combat cancer. But his cousin, the most likely match, refused to undergo the surgery.

"Like any red-blooded American, he sued," Mr. Calabrese said, adding that the state court found inadequate precedent to order an operation. The litigant later died.

Advancing medical technologies, he suggested, may prompt patients to show up in court or state legislature, demanding blood, marrow or kidneys from reluctant donors.

"In the United States, the first answer to the question of if we own our bodies would be 'yes,' in accordance with our traditional libertarian views," he said, citing our laws against involuntary servitude, our right to sell our hair and blood, to give our organs, and the need for informed consent before operations.

This follows the "traditional approach" to legal questions, which relies on precedent to find solutions.

But he noted that you can find other precedents that argue against our absolute ownership of our bodies, most notably the military draft. "In times of national emergency, our bodies do not belong to us, but to Uncle Sam," he said.

He also pointed to laws against suicide, self-mutilation and prostitution and 19th century anti-abortion statutes.

"What if there were a generalized Chernobyl disaster and all the people exposed to radiation needed bone-marrow transplants and there were not enough volunteers?" Mr. Calabrese asked, raising the possibility of a national draft of healthy bone marrow.

He then showed how facing the issue from what he called the law and economics approach would lead to similarly ambiguous answers by asking quite different questions.

It would look for the possibility of a natural market between those in need and those willing to donate; it would contemplate the cost of compelling donations with the cost to those deprived of the donations; it would ask if guaranteeing transplants would cause people to cease to care for their bodies, knowing the government would supply spare parts.

The legal-process approach focuses on what legal entity is the proper one to make the decision on physical body ownership -- judge, jury, legislature, administrative agency, national plebiscite.

"If the question is highly fact-specific, then judges are good, but if the facts are ephemeral, then juries are the best because they often give voice to the unspoken and unspeakable values of society," Mr. Calabrese said.

The law and status approach, he argued, would attack the question by asking who is most likely to get the body parts under various circumstances. Does the current situation, for instance, favor rich white males who need transplants and, if so, can the distribution be made more fair?

If the legal system does not start dealing with this issue, he warned, "then one day those in need will get to be strong and they will not take on the strongest to get their good body parts; they will pick out the weakest."

The bulk of society, he said, might go along much as most Germans did when persecution of the Jews began under the Nazis. "They will seek to save themselves. And that will result in our creating a despicable society."

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