A commenter asked this as a rhetorical question, suggesting, I think, that the answer must obviously be "no." But I don't see why, assuming that we're talking about a minor child of the parent. Parents are rightly seen as having duties to their children. These include the duties to work to support the child for 18 years (more controversially, that's extended even beyond 18 years in many child support decisions, but for now I set that aside); to care for the child; to bear a post-viability fetus, at least absent some substantial threat to the mother's life or health; and more.
Why wouldn't this also extend to the obligation to provide a life-saving transplant, at least when the risk is as low (not zero, but very low) as it is for kidney transplants? You bring a child into the world, and you incur major obligations to it; why shouldn't this be one of them?
Now I don't ask these questions as rhetorical ones, since it's possible that some distinctions can be drawn (or even that the existing obligations on parents are excessive, though I'm skeptical about that). Perhaps there is a dispositive difference between providing an organ and having to work for 18 years to support someone. (I agree there's a difference, even an important one, but it's just not clear to me that it should lead to a difference in result.) Perhaps there is something dispositively different between having to give a kidney forever, and having to provide one's womb for several months; or perhaps women shouldn't have to bear fetuses even post-viability; or perhaps women only have to bear fetuses post-viability because they knew of this obligation early on, and had an opportunity to avoid this by a pre-viability abortion. I haven't thought about the matter deeply enough to have a well-worked out response to all these things.
But my intuition is that a legal duty to provide a kidney, given the very low risk that it involves, is well within the range of burdens that parents may rightly be required to bear; and at the very least we can't just categorically exclude that possibility. I'd love to hear what others have to say.
So how about that? Substitute "blood" for "kidney." Is the answer the same?
I believe it does. At least I think it should, based on the tenet of body ownership being the ultimate property right. Doesn't seem to violate the non-aggression principle
I'd think giving blood is an easy one--it's both less dangerous and less unpleasant than a lot of legal duties that parents do have. Giving marrow, I'd think is the toughest easy decision along that line. An organ, on the other hand...
My take: There's something particular about bodily integrity that should make us very touchy about ever giving anyone a duty to give up a body part that doesn't grow back. There's something in me that just recoils at the idea that the government can force me to give up a body part, even one I can live without with few ill effects.
Now, I think there's obviously a moral duty for a parent to give up a kidney for his/her child, but it just seems too invasive for the law to require someone to do permanent damage to their body.
On your 2nd post, I know of almost no libertarians that oppose a free market in human organs, at least not strongly, and a lot who support that free market.
So, instead of allowing a parent to make a decision, we, as a "society," would make that for him/her?
We've decided that that the "risk" is "low." And afterall the parent has two - four even, assuming Malthus' one-night stand can be found.
But what if there are more children than kidneys to go around. Suppose child number 3, a son, sees his older brother suffer from a genetic disease and lose both kidneys. Dad is strapped down and relieved of one kidney in a low risk operation. Older sister (number 2) and younger brother (number 3) are both tested and each could be at risk of developing the same disease. Can child #3 sue for his "right" to his mother's kidney?
It may conscript to protect the nation. It may imprison to protect the nation. It may not slice in and grab stuff.
Not sure there is such a thing.
At least not as I understand the Posners and Sotomayors of the judicial world.
I don't think I've seen any forum in which the conservatives have complained about this..but I don't think that I've seen any article or official statements showing that they support it. If anyone could show me either, that could help.
That being said ,I don't want to speak on behalf of the conservatives ..but there are a few that post here..any takers? I'm curious, because Ruuffles seems to have shown an inconsistency in the position.
Should a child who is past the age of majority have an obligation to donate a kidney to a parent? This is the more likely and common case. Yes, the adult child may not have the same set of responsibilities under the law to a parent, but should an adult child be allowed to let a parent die when she could live?
You can easily distinguish the two situations under a conventional legal analysis but the comparison is a lot harder than that.
Look at it another way. Does the reasoning of Roe v. Wade make such a law unconstitutional? Aren't my internal organs in some penumbra somewhere? If a uterus is penumbral, why not a kidney? Would the pro abortion crowd shout it down as a Trojan Horse.
There should not, must not be a legal requirement to undergo surgery, even if the risk is "minor".
As a general rule, we do hold people accountable for reasonably foreseeable consequences of their actions, but we generally don't for plain bad fortune.
The question of non-life-threatening bullets that might have interesting ballistic information surely has come up before...
The reason the government may not properly do this is because the government is incapable of moral reasoning, and therein moral prescription through force of law.
Yes, they violate it all the time, but why that opens minds to additional or extended violations is incomprehensible.
There is a difference between imprisonment, which negates freedom of movement, and command over the entire body to the degree that it can reach in and remove parts.
I'm not even fully convinced conscription is proper. But government should not be confused with a moral commander in chief, nor owners of citizens.
This is where legal training warps the student and why we should return to having wise people on the courts, and not just lawyers.
What if the parent possesses (or at least claim in manner that cannot be disproved) a religious belief that God doesn't want the child's body made impure by another's organ?
What if the parent is not a biological parent?
What if the parent is a biological parent who has not seen the child in 15 years?
What if each parent has a candidate kidney, and neither volunteers to go first?
If the parent is unwilling, I can not envision an effective legal obligation, even if one beliefs it would be appropriate.
I think there are a couple of answers:
1) "professional" medical ethics people don't like it, because
2) it is anti-egalitarian. It gives advantage to those with money (gasp) and presumably reduces the availability for poor people - or in its more pure form - it lets some people take advantage of their wealth, and that goes against the underlying socialist principle of equality of results.
Hold on... has anyone ever been jailed for not having a job to support their kids? Can the govt force someone to accept a job to support their kids?
You're confusing "right" with "government-granted privilege."
We don't accept a "rape contract" that allows one party to have sex with the other even if that party later changes their mind.
We don't accept "slavery contracts" that require one party to work for the other even if they later change their mind with specific performance as a remedy.
Even if we had a free market in organs, I don't think we'd accept enforcement of those contracts by removal of the organ against a person who had changed their mind.
A person simply cannot, either voluntarily or as a consequence of their actions, give up their fundamental right to control the integrity of their own body.
No, the government may not cut into the body to retrieve stolen property. However, the government may prevent the possessor of said contraband from removing it from a premise.
Same moral dilemma. Cut into one body to save another. Government is uniquely unqualified to make those choices.
Assuming the kidney hypothetical falls within your description, my question about your statement is "Why- other than your own assumption?"
I don't know of any state laws obligating people to donate kidneys to their children, but given the risk of the procedure vs. the upside in cases where the child has a good chance of benefiting, I think a majority of the public would view such laws favorably, and courts would be inclined to uphold them to constitutional challenge.
Jailed : yes. The government can not force an individual to accept a labor contract (regardless of the reasoning), but can punish an individual who does not pay fees with jail time that includes mandated labor.
Absurd. How does government chose who is more deserving of a kidney, and whence did government arrive at the ability to chose between who has the benefit of the laws?
government hasn't done this at all, so far as I know. But it seems to me that resting ipse dixit ("Absurd.") or analogy ("Kelo for the body") amounts to nothing more than throwing your own assumptions at the issue. Which, I guess, is how essentially all political problems are resolved.
I agree that this accurately represents the current state of the law, but I'd be curious as to whether your post was purely descriptive, or if it was prescriptive as well. Is there an argument justifying this stance?
To me, it seems obvious that the rights of ownership in a thing include a right to sell or contract that thing to others- even at terms others might find disadvantageous. So if we tell someone that he cannot sell or lease a personal service contract in any binding manner, we are telling him that he does not own his own body and labor. I don't see much if any philosophical difference between the policy against binding services contracts, and laws against pornography or the War on Some Drugs. In each case we're societally saying that we know better than the individual what he ought to be doing with his body and time.
The good part about that is that I am not offering an opinion which contemplates depriving you of yours, or your choice to give a kidney or not.
When it is a government action, it is force. I seek to limit both as well as be a constant reminder that government personnel are not elevated from a class of people who are not qualified to make their own choices into people who are qualified to make choices for all by virtue of election.
I think the basic principle is that we don't otherwise force individuals to have invasive medical procedures done for the benefit of others. This was an operative principle in In Re AC (DC Circuit, 1990) in reversing an order that Angela Carder have an involuntary C-section (post-mortem as neither she nor her child survived the operation).
As for a blood transfusion asked by another poster, that is a better question. My thinking is that the same reasoning would apply but I am not at all sure.
Winston v. Lee, 470 U.S. 753 (1985) disallowed nonconsensual surgery to retrieve a bullet.
A more recent case was discussed here a couple of years ago. Link.
To me, it seems obvious that the rights of ownership in a thing include a right to sell or contract that thing to others- even at terms others might find disadvantageous. So if we tell someone that he cannot sell or lease a personal service contract in any binding manner, we are telling him that he does not own his own body and labor. I don't see much if any philosophical difference between the policy against binding services contracts, and laws against pornography or the War on Some Drugs. In each case we're societally saying that we know better than the individual what he ought to be doing with his body and time.
You're right. All those are invasions of autonomy and improper territory for government.
Actually, my original concept was taking the logic which reversed the order for AC to have a C-section (In Re AC, DC Circuit, 1990) to a further conclusion. The court there ruled as a necessary part of that decision that the C-section order had been invalid because there is a Constitutional right to be free from such orders for involuntary invasive medial procedures which are done for the benefit of others.
It seems to me that In Re AC is right on target here and although it only exists on the level of the DC Circuit, it does clarify some of the issues.
I take it you've never paid large amounts of child support.
Uh, says who?
Best,
Ben
A man has a right to control HIS body too. You can't forceably take his sperm or his kidney. If you can, then there is no "equal protection" for those of us with a Y chromosome. Roe works both ways or not at all.
If you phrased it that way, id est, regardless of any moral obligation, should a parent have a legal obligation, not within a theoretically ideal justice system, but within the miserable inefficient incompetent excuse for a system we now have, to et cetera and so forth, then I'd say any rational person not in the grips of perfectionist ideology would say categorically no.
How about we first fix up the judicial system so it makes brilliant 100% correct decisions on, say, free speech on campus, or affirmative action, or who to send to the death chamber and who to spare? Or even manages to make custody decisions in ordinary child-welfare cases that never result in the tragic death of a child nor the needless destruction of a family?
Then we can consider completely replacing the human conscience with the divine words of our God-like legislators, as interpreted by our inhumanly wise (and "empathic") and infallible judges, and the question of how to do so with respect to profound parenting decisions will become relevant and interesting instead of repugnant.
In Re AC is exactly on point for that show I referenced. In fact, the show is so close, it was probably the source of the plot.
It also provides the bait for this type of reasoning. Bait to a really bad trap.
It isn't when government seeks to prevent harm or punish harm-doers that it steps so far over the line, it is when government seeks to do good, that stepping over the line is unavoidable because for government to do good, it must do bad first. Grab the money, grab the liberty, grab the baby, grab the kidney, they cannot just wave a glorious hand over the land and do good.
For government, do no harm is more important than do good.
I'm A+, my wife is B-. Our son is AB-. Nobody gets transplants from any other of us.
This is pretty much true. My father has one kidney as a congenital birth defect, and when he was "retired" from a corporate position in his mid 50's they found it impossible to buy individual insurance at any price, and my mom chose to go back to work so they could be covered until both of them hit Medicare age.
Of course, these are all pretty far down a slippery slope. It's entirely possible that you could craft a very limited market (perhaps just "allowing the recipient to present the donor or their family with an honorarium"), along with very strong legal language to make it clear that one's body is not to be considered a financial asset for any purpose whatsoever. Theoretically, that could at least allow for the possibility of increased organ donation (it probably wouldn't be enough to buy organs off the completely uninterested, but it might go a long way to compensating those who genuinely wish to help but couldn't deal with the associated costs of donation, such as missed work) without risking any kind of nightmare organ harvesting scenario.
Besides, what if you couldn't pay your transplant bill? Are they gonna come repossess your organ?
I think the person in the financial difficulties is in a better position than you or me to make that decision. If he prefers to sell his organ as opposed to dealing with whatever problems he's dealing with, society is making him worse off by taking away his right to sell his organs.
Probably a long time, considering lenders can't go after borrowers' houses, if I'm not mistaken.
The same way you're "Disallowed" by owning a house or a car or a bunch of TV's? Or a better analogue is Social Security Benefits or Disability Benefits. Bankruptcy law already easily accounts for certain things that creditors can't take no matter how much money you owe.
EV did say "Moderately Free" I think any market for such things would necessarily include strong protections against certain types of transactions and certain collateralizations (is that a word?) of organs.
When debtor's prisons come back into fashion, then we can start to talk about slippery slopes.
In terms of protecting again impulsive, desperate organ donations, two possibilities are to either make the payment to a trust or a life insurance policy that pays out upon the death of the donor or to keep the payment in escrow for a fixed period of time.
Forced organ donation mandated by the State? Lovely. Had we done this to our enemies, it would be called torture.
Oh, but "wait," says the statist. This isn't torture to extract a confession or exact punishment. This is being done under color of law for your own good, the good of the child and the good of society.
"The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience." Albert Camus
If a woman who is dying of cancer and is unlikely to survive long enough to give birth can refuse a C-section then she ought to be able to refuse to donate a kidney after birth. However, a simple, rational approach would suggest both cases should go the other way. Really it comes down to the question of whether a right to bodily integrity exists or not.
On the tangent...
I consider myself a broadly libertarian-leaning conservative, so maybe I'm qualified to answer this. Then again, I haven't really gotten involved in organized politics, so I don't actually know what the feeling is from the people who are trying to be movers, who would likely have a better feel for the politics of such a move than I would as an armchair pundit.
I suspect many, perhaps most, conservatives and Republicans would support such a thing. (The so-called "social conservatives" might be less likely to do so, but I'm really not sure what sort of position even the ones I know personally might take on it.) I would bet that the reason it isn't discussed seriously very often is mostly that the potential for unthinking political backlash is considerable. Absent a well-publicized situation to use as a stump to argue for it, odds are Democrats will argue against it on some ground or other (including just that it's Republicans proposing it, don't forget crass political gain), and enough of the rest of people will complain to their Republican congressmen that the right would be split to a non-negligible extent. An argument can be made that other potentially dangerous political stands would have greater overall benefit than ~70k lives a year, so those stands are more likely to happen; going against some of the base is not the sort of thing a politician does if he can help it.
In short: it's not the principle of the proposal, it's the politics; alas and alack.
Parents owe a child food, shelter, training. That's it. That is their obligation. You can't require them to love their children. And you certainly can't require them to donate organs.
You may say that the risk is low, but that is not for you or for the government to measure. Only one person can make that measurement, it is the person owning the organs.
You're also not taking into account the odds that the transplant will help the child. If the child is mangled in a car accident and a kidney transplant is one thing among ten other life threatening issues before the child, who is the one best called upon to decide if the transplant is worthwhile?
I'm sorry, but I don't want Barney Frank or, fer gawd's sake, Al Franken being the judge of the value of my organs or my life.
That I love my daughter and my family is none of anyone's business. The risks I take on their behalf is my business. It is not Nancy Pelosi's.
You should also look up what dialysis entails. A patient will go for dialysis 3 times per week (usually) and each visit will take several hours. dialysis puts one at risk for a wide variety of complications and side effects. pts are usually on quite a few drugs. They are one illness or banana away from hospitalization. but even absent these problems they are committed to a incredibly shortened lifetime's worth of lab draws, doctor visits, med adjustment and setbacks.
Explain Gonzales v. Carhart then. Or for that matter, explain the references to viability made previously in Roe v. Wade or Planned Parenthood v. Casey.
It's the government's business to mediate between individuals and to impose The Consensus upon them.
Or are you some right-wing Fascist, trying to keep DNA-impaired fetuses from being relieved of the torture of life?
I'm guessing this is sarcasm, but nowadays you can never be sure.
Individuals have too much control over their lives. To bring peace and social justice, government must take responsibility for society's ills. A child's defects do not benefit the community; then, appropriate of medical concerns like blood type, it is society's duty (and therefore the government's, as the tool of Consensus) to repair the defect with the resources of the individuals responsible (parents) or terminate the organism in question.
Is this really true? I would have guessed that liberals would be, well, more liberal on this subject. Freedom to control one's body, and all that.
I tend to favor the idea in the abstract (again, my guess is those of us who have had a sick relative who would have benefited from a 'donated' organ are more likely to support such a programme). Politically, I don't see it happening in the near-future, and likely not in my lifetime. Heck; here in California, we can't even get the law changed so that the assumption is that a person wants to donate (ie, to have an 'opt-out' on a driver's license), due to the political and social climate.
Have Barney Frank or fer gawd's sake proposed anything like this?
I would be much more worried about Sarah Palin, if I were you. It is generally conservatives who make hay out of family values and oppose Roe v. Wade.
For example, suppose you an I entered into a contract that required me to do whatever you said and absolved me of any responsibility for actions I performed on your command. No rational person would hold that this contract actually can absolve me of such responsibility because it is the nature of a moral agent to be morally responsible for our actions.
The only way to change this would be to invent some kind of pill that extinguished my moral agency and made me incapable of disobeying you. In that case, I would not be responsible for my actions.
But until we develop some way for them to do so, moral agents simply cannot shed their moral agency and the responsibility that comes with it.
First the government provides insurance, next it begins harvesting organs.
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The Supreme Court cases limit state ability to restrict abortion, but they do not operate to "unlimit." That is, a state that has unrestricted, on demand abortion, paid for by public money, does not run afoul of any SCOTUS precedent.
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A woman desiring a post-viability abortion may have to obtain services in a different state from the one she resides in, but the Supreme Court does not restrict this.
Unless that person is vicariously redeemed through human sacrifice, or through some other bizarre metaphysical technique. You see where I'm going with that:
It took quite a while (at least twenty or thirty posts) for anyone to point out that, that, in fact, we don't require parents to work to support a child. Rather, a substantial portion of parents in this country don't work to support their children.
Why you made this statement, and why commenters are not noticing this statement, is beyond me. Its pretty central to your argument, and it is clearly incorrect, so the argument isn't really worth addressing.
Sk
I just noticed the caesarian section post, below. I now understand that this post is just a quick, somewhat poorly argued hypothetical extension of the caesarian discussion.
Sk
I know that custody and support cases sometimes end in fathers being jailed for refusal to work and pay support.
Why doesn't the same rule apply to recipients of public assistance? In the glory days of AFDC, parents with children frequently didn't work. Why weren't they ordered to do so or be jailed? They have a support obligation too.
None of the government's business.
I am with Brian G's (1st commenter) sentiment. I am a father of 3 boys and 1 girl and there are many things too consider.
So, if the hypothetical father is going to be complled to donate and the father decides that he is going to exercise his right to self defense against the government agents, then what? When the child dies, what is the charge; capital murder, murder, negligent homicide?
Just like with confiscatory taxation, the act of charity is co-opted by the State.
So, my answer would be no if you're talking about a law.
On the one hand, you believe that the government may not, even in divorce courts where parents have irreconcilable differences over how to raise their children and one parent wants to raise the child as a devil-worshipping bigot, control the free speech rights of the parent and limit what he or she can teach the children (nor can the court take into account the protected opinions and believes of the bigoted parent in making custody decisions).
On the other hand, you believe that the government may order a doctor to forcibly sedate a parent, slice him or her open, and remove a healthy, functioning kidney from that parent.
Is that correct? Granted, I'm using an extreme example on the custody issue, but I think that's a fair summary of the arguments you have previously made on the topic.
This whole area of organs and a free market therefor touches on an area which reveals some of the significant philosophical splits between libertarianism and conservatism. Libertarians tend to favor such a market, because according to libertarian ideology, the very existence of the market proves that people are entering into these transactions freely and thus larger freedoms are being preserved, and no individuals are being harmed (because, by definition, they are entering into those transactions voluntarily). Conservatives, on the other hand, tend to believe that there are some few areas where a free market, left unchecked, can lead to a society in which we don't really want to live, however "free" it may be.
Also, an abortion is designed to free the woman's body from the natural consequence of her decision to have sex (except in cases of rape). What if the child's need for a kidney was the natural consequence of some decision of the parent? For example, what if ingesting some drug during pregnancy was shown to result in kidney disease in the child? Would we be more inclined to agree that the mother in that situation had a moral, or even legal, duty to give a kidney to the child?
ReaderY,
There's no doubt that a state-compelled invasive surgical procedure —taking a kidney for a public use— is a seizure within the meaning of the fourth amendment. The law has settled that.
The constitutional question thus becomes whether it would be a reasonable seizure.
Does the fact that many/most parents are not acceptable donors affect the legal analysis?
As to the risks for the donor: I know a doctor who donated a kidney to his son. He said it was an easy decision.
If your answer is 18, then is a parent allowed to "recover" his kidney from the child once that child reaches maturity? The parent is (at least in some small manner) disadvantaged by having only one kidney, therefore shouldn't the parent's obligation to disadvantage himself end once the child reaches maturity?
If your answer is anything above 18, how do you distinguish between a parent donating a kidney to a 22-year-old and a parent allowing his 22-year-old to keep the kidney?
To preempt the false dichotomy argument; if a parent has an obligation to provide a kidney to his child, what rationale do you use to end that obligation at age 18? How is this different from a parent refusing to provide income to a child past the age of 18?
I think the general point is that most of us don't like folks that we don't agree with making these sorts of decisions. This is why it is always good to ask, about policies one supports, whether support would be different if one's political opponents did it instead.
And we all know why the question was made -- to draw an analogy to a certain popular operation.
A false analogy.
The proper analogy is: if a parent donates a kidney to a child, is the parent (or any other donor) entitled to abrogate it and have the child's body chopped open to retrieve it? And if the child might survive, is the parent entitled to have the child chopped open in a way to maximize the chances of the child dying? (And, according to some, if the child, despite this, does survive, does the parent have the right to have the child dropped in a closet until death occurs, because anything else would be a "burden"?)
It's part of the parent's body and the parent has a right to prevent the child from using it. Even though the operation is performed on the child. An abortion does not tear the mother limb from limb, or shoot her full of toxic solution (at least not intentionally -- accidentally, yes, and it's excruciating), or suck her brains out.
I do see a legal difference between the obligation to a live child versus obligation to a fetus (subject to religious objections and other situational mitigation) that suggests forced organ donation is MORE within the scope of government power than is forced pregnancy/or prohibited termination of pregnancy. It's a fabulous slippery slope, but I'm certain few pro-lifers will take the slide in this direction, (or toward limits on disposal of un-utilized reproductive material) as most cave when personal cost is involved. The Catholic church remains the only voice with a consistent and comprehensive view - no spilling seed, no harm to zygotes and no killing live independent people.
Correct. It was an analogy to the C-section order in In Re AC.
The Forced-C-Section issue has some commonality with abortion law, that is true in the sense of bodily autonomy. However, there are also some fundamental differences too. I think that the question of prenatal care and forced organ transplants leads a little more away from the patients' rights we generally hold to be important.
We do generally hold as a basic legal principle that all medical procedures done on adults requires informed consent-- that medical procedures are technically assaults which are legal because of the way consent works. This principle of informed consent is central to questions of when a medical procedure can be done on a person.
In the case of minors, the state can sometimes substitute its consent for that of the parents and child under the parens patriae power. This is sometimes asserted against women in the case of forced C-sections, but it looks like In Re AC has largely become the centerpiece of caselaw in this area, such that even jurisdictions not bound by it feel compelled to answer to it.
Once again, everyone jumps on forced C-section vs abortion as an obvious link, but there are supposed to be important cases which protect folks from state-sponsored assaults merely for the good of someone else. (Usually forced C-section orders are ordered allegedly for the mother's good which would fall more clearly in the parens patriae power.)
Honestly, this was a question not of whether a woman can terminate a pregnancy, but whether she has to consent to specific medical procedures to be performed on her. These are fundamentally different questions, and the organ transplant bit sheds light much more on this issue than on the abortion issue since it is an affirmative medical procedure done on an unwilling person in this case.
einhverfr, how comparable would you consider cases on, say, court-ordered surgical removal of a bullet from a criminal suspect? As highly as we value bodily integrity, we do allow the courts to breach it a times. We allow body-cavity searches, for example, with the appropriate probable cause to belief that evidence or contraband will be found. We allow forcible treatment of those adjudged not competent to make medical decisions regarding their own care. We let courts order medical treatments on children over the objections of their parents, even when the parents are not considered otherwise unfit.
To me, this would cross a major line, which should not be crossed. I also oppose our host's position on organ markets. Once we start putting a monetary value on body parts taken from a healthy individual, or allowing the government to order body parts moved from one person to another for any reason, we're crossing a Rubicon, and there is no going back.
There should also be no requirement to have a forced caesarian. No one has the right to judge the risks of the surgery to the mother. The child has a right to its life, but it has the obligation to be born naturally or if that is not possible then it must rely on the charity of the mother to do more.
Only the mother can decide if the risk is too great for surgery. No one can decide it for her. But if she decides instead to chop the baby into pieces when it is still able to be born naturally, then she is committing infanticide, no matter what Sandra wants to call it.
In my opinion, to ask the question is to answer it.
In addition, this is a "responsibility" which the parent can be said to have to a sharply limited number of children. (Four, if we include both parents, and put them both on dialysis afterward.) As long as we are multiplying our hypotheticals, I give you a family of five children (like mine). To which of the children do the parents owe this responsibility? Do the court and the bureaucracy get to decide that, too?
Raises some of the same issues, but not all of the same. It also raises other issues (such as whether ordered submission to a medical operation could be considered comparable to a court order to provide testimony that would be self-incriminating). Also it raises standard for search and siezure issues too, as well as issues of criminal prosecution powers.
On the whole, this has very little to do with the limits if parens patriae. Not comparable at all. It is more comparable to body cavity searches in pursuit of criminal law enforcement, as you mention.
It would, however, have little bearing on whether a pregnant woman could refuse a blood transfusion that was deemed necessary to save the life of her fetus, be required to undergo a c-section, or forced to donate a kidney to her child.
If this is correct, why doesn't a parent have a duty to undergo a medical rescue so long as it will not kill the parent? Bodily integrity shouldn't be a factor; if one is obligated to risk injury for a rescue, what is the substantial difference between injuries sustained in a rescue and the consequences of surgery?
I am not sure that rescue of a child from a swimming pool is comparable to donating a kidney.
Yes, there is a duty to rescue, but I am not sure that it necessarily extends to include the duty to consent to assaults on one's body for the purpose of that rescue. In other words, if someone is out trying to beat your child to death, do you have a legal duty to say "please beat me up but not kill me instead?"
Maybe you're sufficiently removed from Academia to not recognize this type of discussion. (and many would probably say this is a good thing).
I certainly don't read EV's post as affirmatively arguing that a parent should be legally forced to give a kidney to a child, and I haven't seen any commenters here explicitly saying so.
The heart of the discussion here is essentially using a particular situation as a teaching tool used to try to get people to articulate the standards they're using.
The law already requires a parent to give 18 years of labor to support a child, the question is why is that qualitatively different. As one commenter put it, why does that duty "only" extend to "food, shelter and clothing." What standard is one using to draw the line there?
Then it ties back into the original discussion which is whether or not a mother could be forced to undergo an invasive operation to save the life of an as yet unborn child.
It seems to me you're using kind of an odd assumption about the underlying law. Notwithstanding federal funding issues and the partial birth Abortion ban act, Abortion remains something generally regulated under state public health laws, and I see absolutely no reason why that shouldn't be so.
The court's decisions typically dictate then, where states may not permissibly go under the constitution. Generally stating the current law is that re-viability the "undue burden" standard is used, and post-viability, states may prohibit except for situations where it's required for the life or health of the mother.
I realize people take issue with the broadness or narrowness of "health" but that's an issue of line drawing, not restricted vs unrestricted. At that point the issue is entirely state by state and how much states chose to restrict Abortion.
I have no real idea how restrictive these statutes truly are, but according to this (merely the first source I found) 37 states prohibit abortions after a specified point in pregnancy except when necessary to protect a woman's life or health.
Given that I remember from the news coverage of Dr. Tiller's murder that Kansas officials had repeatedly charged tiller with violations of Kansas Abortion laws (he was aquitted on each on the facts), most of these laws probably have some sort of factual standard.
But 'or health' is the exception that swallows the rule. All you need is an abortionist who believes a mother's mental health is endangered. I have never seen posted any record of medical licensing boards pulling physician licenses on the grounds of that kind of judgement call.
My guess is there's a few reasons for this.
1. It's my general sense that providers of later term abortions are exceedingly rare. I seem to remember commentary that George Tiller was one of three in the country that did such procedures routinely. this suggests something on the order of 1% are at >20 weeks.
2. Given that the number is so small, I'd think the number of them that are truly suspect as to the "cause" is smaller. This is entirely supported by evidence, but do you really think that many women would travel across several states to seek a late term abortion when the "necessary for their health" is nothing more than a pretext?
3. Despite abortions being so controversial politically, I think there's a pretty strong presumption against any sort of government figure wanting to second guess doctors. Like I said above, George Tiller was apparently charged with 16 Misdemeanor counts of violations of Kansas abortion laws and aquitted on all of them.
4. Barring blatant sham opinions by doctors, enforcing statutes of this nature is really pretty difficult. You have the choice of second guessing doctors after the fact (her life wasn't really in danger), or instituting some kind of pre-procedure review. IT's my understanding that a number of states also require mandatory second opinions as to later term abortions, but beyond this, forcing doctors to get some sort of "approval" from a government would be a pretty obscene law.
And accompanying footnote:
Now, I can see that one would argue that forced organ transfer is more analogous to a duty to rescue (the point ASlyJD raised). And although this analysis starts off with the argument that medical rescue is not a duty owed in this case, I think there are some important issues to consider which rightly lead the court to differentiate this case from duty to rescue cases:
1) Duty to rescue cases typically involve immediate risk to life and limb. I don't think a medical rescue case rises to that level.
2) Typically, the risks involved when looking at saving, say, a child from drowning in a swimming pool (for example) are born exclusively by the child. In an organ transplant case, the risks of complications or future organ problems are born by both the donor and the recipient.
3) A duty to rescue that includes a duty to undertake invasive surgery with potentially serious consequences is fundamentally more intrusive than typical duty to rescue cases. Typically in accident reporting, a "serious injury" is one which requires at least 48 hours of hospitalization, and an organ transplant thus might qualify. Thus this duty of rescue in this interpretation would include the duty to sustain serious injury for the sake of one's children.
4) The only way such an order can be enforced in an urgent case would be to forcibly sedate, render unconscious, and cut the person open.
The duty to rescue typically does not require the rescuer to do so even when certain to sustain serious injury in so doing. We don't require parents to go back into burning buildings to rescue children. In essence, the duty to rescue does not require taking on oneself various bodily harms. Thus even where duty of rescue might apply (parent/child), I don't think that a medically harmful procedure, such as an organ transplant, could be required under this doctrine regarding common law.
Whether a statute which required such consent to a transplant would be unconstitutional, or whether it would fall under life/liberty/due process guarantees of the 4th and 14th Amendments I can't really say at this point since the case law seems focused primarily on common law principles.
But in your example the mother STILL takes an affirmative step. This is different from saying "I know my baby will die without a C-section but I don't want to be cut open."
For new ones, it would seem inescapable to start with natural law. In nature, the parent does not self-sacrifice often, and when it does, it is in aggressive defense against an attacker and possibly not intended.
To build on existing legal structures, wouldn't that necessarily have to come from court conflicts? Who has standing? Wouldn't that be limited to recipient versus donor?
So my thinking is, are there existing standards to build upon that match the scenario of mortality?
Does a parent, who has the legal obligation to feed, shelter, whatnot, currently have the obligation to starve so to provide food for the dependent? Has something like that ever come up.
I think that is a better platform for the argument than the utterly overly-sensitized and polarized Roe V. Wade. Unless this is meant as a platform for attacking Roe V. Wade which is silly. No matter what happens, the arguments on Roe V. Wade boil down to morality issues. The destination cannot be changed. (I don't think.)
The fundamental question is whether we force individuals to undergo invasive medical procedures for the sake of the health of others. You are right that I think this is closer to the forced C-section area than either is to abortion.
If I buy a Whopper every Monday, is my not buying one next Monday an "affirmative step"?
The point is, nobody really believes that whether there's an affirmative step or not makes any difference. All that matters is that the fetus dies. If the mother could terminate the pregnancy and kill the fetus without taking any affirmative steps, by simply ceasing to take the positive steps her body is taking to maintain the fetus, the issues would be precisely the same.
No, but if you are already in Burger King, walking out the door and over to the Wendy's across the street might be.
Here is a more tenuous area, but one which is recognized as a difference:
In my state, if a Jehovah's Witness decides not to take his/her child into the hospital to get a life-saving bone marrow transplant, this is not child abuse, but forcibly removing the child once in the hospital (with parens patriae consent from the state) would be.
Many people perpetually argue whether this distinction SHOULD be made. The fact though is that it is a place where a distinction CAN be made.
Pregnancy is about as natural an act as there ever could be. It might be undesirable, but it's how every single person here came into being and is how every single member of the youngest part of the human race is sustained.
(I also don't find it to be an accident that pregnancy has a few beneficial effects for the female body, such as a lower incidence of breast and ovarian cancer.)
The same, obviously, cannot be said of kidney donations. The only reason that the discussion is possible is because of advances in medical technology. No one, 100 years ago, would claim that invasive surgery to remove a major organ were a duty of parenting. Why should it be so now?
Kidneys are not like the uterus. The former are designed - by evolution or a creator - to be within our own bodies. The latter is designed - by evolution or a creator - to sustain infant life.
The second big distinction is in the right of non-aggression. As much as pro-choicers may use terms like "evicting" a foetus from the womb, as if it were a tenant who could live elsewhere, abortion is a horribly violent and deliberate act. (Getting out of the philosophical cesspool that pro-choicers seem to do adore: women do not do anything deliberate - at all - to maintain pregnancy. The very reason that abortion exists is because a pregnancy, without any other action by a woman, will continue, uninterrupted, until childbirth.)
Outlawing it is entirely consistent with our laws. Refusing to donate a kidney, however, is nothing but the failure to act. Until we criminalise all failures of action, I don't see the point in doing it here.
Do you agree with me that forcing C-sections merely because of statistical risks to the fetus is equivalent to forced kidney transplants?
Sure, we can distinguish between abortions done on weekdays and abortions done on weekends. But absent some reason to think there's any moral difference or reason for a legal difference, that we can draw this distinction is not particularly important.
Also, there is more of a medical risk for a kidney donor that just that associated with the surgery to remove the kidney. While we can manage with just one kidney, a person with only one healthy kidney starts with only 50% of the functional capacity that two healthy kidneys would give them. Thus, after donating a kidney, the person has a lesser margin of safety in the face of trauma or any renal disease they might develop later.
The courts have forced men who weren't the biological fathers to provide financially for those children whom they had been parenting, under the belief that the the child was biologically his. Would a court be allowed to force that "parent" to undergo testing and harvest of an organ for a lifesaving surgery? Were this an age of sanity, where a man could prove that he was not the biological father of a child he'd been tricked into providing for, I'd say no. Today, I'm not so sure.
If a 25-year-old gave a kidney in 1980, that person would be middle-aged right now... and, perhaps if middle age brings renal trouble (diabetes, lifestyle, normal aging), our hypothetical donor would just now be experiencing the trouble that could come from having only one kidney.
Of course, doing controlled research studies and crunching the data would also take time, so I'm wondering what people really mean when they say that there are few "long term" effects of kidney donation. Does "long term" mean five or ten years, or, the real question here, fifty years?
I mean, they only performed the first successful kidney transplant 55 years ago, so I'm wondering how we can really know this.
NOTE: of course I'm open to the idea that this has been studied extensively, with enough data for statistical certainty, and that there really are no effects of kidney donation over fifty years. It's just that a quick look over research and the history of donations seems to suggest that such data probably are not available.
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