American Journal of Law & Medicine

Teaching bioethics in the law school classroom: recent history, rapid advances, the challenges of the future.(Symposium Dedicated to Joseph "Jay" Healey)

I began teaching Health and the Law(1) in January, 1985. Louise Brown, the world's first "test tube" baby, was six years old.(2) Karen Ann Quinlan, whose ventilator had been disconnected years earlier,(3) was still alive and being tube fed in a New Jersey nursing home.(4) Acquired Immune Deficiency Syndrome (AIDS) was a still little understood disease.(5) Although forward looking scholars had been writing important books about access to expensive health care,(6) few legal challenges had been made to alleged treatment (whether ordinary or extraordinary) refusals.(7) Oh, what a difference a decade makes!

In keeping with the theme of this issue, this article focuses on law and bioethics in the year 2000, particularly the teaching of bioethics. In some ways the challenges of teaching bioethics in the year 2000, or anytime, are the challenges of teaching any course in the year 2000, or anytime. In other ways, the special topics covered in a bioethics(8) (or any health law) course and the dramatic impact on the area of health law by science, medicine, and technology make the challenges far more difficult than in many other areas of the law. Those challenges include staying current with doctrines and policies as expressed in case law, statute, and regulation; assisting students in learning the substance of the material and its application in representing their clients; incorporating professional responsibility issues into teaching, especially those relating to the diverse life circumstances of clients; and making the course material real for students.

Part I of this article discusses each of these challenges. Part II analyzes some of the changes which have taken place in the law relating to bioethics over the previous decade and offers a modest guess as to how some of these topics will develop over the next decade, providing us with still more opportunities and challenges. Throughout the article, I remember and bear in mind the life of our friend and colleague, Jay Healey. Jay not only welcomed all of these opportunities and challenges with enthusiasm and extraordinary skill, but also served as a mentor and role model for those of us who share his enthusiasm and can only aspire to his skill.


The most obvious challenge in teaching bioethics now and in the future is substantive, that is, keeping up with the material and providing students with the most up to date sources available. The four topics I cover in my Health and the Law course which I discuss here(9) illustrate these problems.

As Part II demonstrates, the substance of law relating to bioethics and decision-making seems to change daily. Casebooks are out of date virtually before they are published.(10) Many health law teachers no longer use standard casebooks, but rather assemble their own materials; those who do use casebooks must constantly supplement them.(11) The burden is heavy. The reading required to "keep up"--cases, statutes, regulations, law review articles, medical journal articles, popular media pieces--is staggering. Reading is then followed by selecting pieces for both teaching and background. Most must be edited and in many instances teachers must request permission from the author or publisher to make material available to students in reproduced form. One of the most tedious of these tasks is keeping current with statutes. Once a case or article is selected and edited it generally stays the same unless the teacher chooses not to use it again. Statutes and regulations are another story, however. They must be rechecked--and often reedited--with their every use. Pocket parts become the necessary bane of many health law teachers' existence.

Once teachers select and edit material for classroom use, they face a second major challenge in its preparation and presentation. In many respects, technology, medicine, and disease have gotten far ahead of law as it relates to topics such as assisted reproduction, decision-making at the end of life, AIDS, or access to health care.(12) As always, when courts and legislatures find themselves in the position of deciding cases on issues of first impression and drafting statutes, they have history and tradition as background. History and tradition generally work well in the development of the law relating to bioethical issues, giving support to the notion that health law is applied law. Thus, what we as teachers, students, and lawyers often need to do is to determine what already existing law works and is acceptable to our judges and legislators in new areas. Once we do so and refine our skills in persuading courts and legislatures that existing doctrine works, we will be able to represent our health law clients no matter what the issue presented. Some questions, however, may be so unusual, so unique to what has gone before, that looking to other areas of the law or to analogous doctrines may not provide answers--or at least not very good answers--to the troublesome questions posed by bioethics cases.

A good example of the "applied law" approach to health law is in the context of AIDS. Despite the fact that all AIDS cases share one fact--one or more parties in the case is affected or potentially affected in some ways by the human immunodeficiency virus (HIV)--in many instances the cases are much more like non-AIDS-related cases than they are each other.(13) Most areas of the law in which HIV - or AIDS-related cases occur embody well-defined doctrine applicable to those cases.(14)

Assisted reproduction, on the other hand, represents an area where the "applied law" approach in health law is not as easily adapted. Surrogacy provides a good example. On the surface, a dispute over a surrogacy contract could be decided according to basic contract principles. Was there offer, acceptance, consideration, a breach or a threatened breach? The party seeking to avoid enforcement of the contract could argue that it is void for public policy reasons because it appears to violate adoption laws which prohibit the exchange of money for children, i.e., baby-selling. But, while there may be an attempted adoption by the genetic father's wife in a traditional surrogacy situation,(15) the situation is also well removed from a typical private adoption where the prospective adoptive parents exchange money for babies, or as they would argue, for the genetic mother's medical expenses.(16) Assuming that the contract is held void on public policy grounds, what should happen to the parents and the child? Should the case become a custody case, with the court to determine custody according to the best interests of the child? If the so-called "surrogate" were married at the time the baby was born, should her husband be presumed the father of the child, and the genetic father be precluded from contesting paternity? Would such a rule violate equal protection principles because the wife of the genetic father would not be presumed to be the child's mother? Is the genetic father to be treated as a sperm donor with the rights of all parties determined according to however state law treats those who participate in artificial insemination births? How does all of this change, if at all, when the surrogate is not the genetic mother of the child?(17)

Another example of such an "applied law" dilemma in the area of assisted reproduction is illustrated by Davis v. Davis.(18) There, when a man and a woman who were once married to each other disagreed over the disposition of frozen embryos created with their sperm and ova, was it more appropriate for the court to determine whether the embryos were property and, therefore, owned by the ties, whether the parties were to be treated as the "parents" of the embryos and the matter decided as a custody case, or whether the case really involved reproductive freedom with the parties (or one of the parties) possessing the right to exercise reproductive choice?(19) Once a court decides whether the facts of the case warrant treatment as a property or a family law or a reproductive rights case, the court could decide how to apply the relevant law. That, however, is a second order decision. The first-order decision is the much harder one, the one harder to determine in advance, the one without much certainty.

Issues such as those raised by traditional surrogacy, gestational surrogacy, or in vitro fertilization, indeed throughout the assisted reproduction context,(20) are a health law teacher's dream. They provide wonderful facts with many permutations. There are arguments based in case law, legislation, and public policy to be applied on all sides. But to say that the answers to such questions actually result from the application of existing law perhaps underestimates the teachers' the students' and the lawyers' roles. Part of our challenge as health law teachers, then, is to help our students not only to develop traditional ideas and analytical skills, but also to think beyond the traditional, to be creative, and at times to question whether issues are appropriate for legal determination at all.

Professional responsibility issues also pose a continuing challenge to the health law teacher. All teachers, regardless of subject matter, attempt to incorporate discussion of professional responsibility issues into their classes. Some issues, however, lend themselves to particularly good discussion in health law courses.

One of the questions I frequently ask my students--especially following a heated discussion of an emotional issue--is what will you do if you prevail in this case? For example, many of my students believe that Mary Northern's(21) wish to keep her feet should have been honored by her physicians and by the court. At the conclusion of the case discussion, I ask those students who most adamantly supported that position what they will do when after they so effectively represent Ms. Northern and she is permitted to keep her feet she says to them, "Thank you so much. You are a terrific lawyer. Now, please help me to leave the hospital and go home."(22) Almost always, the students meet the question with a stunned silence.

Just as health law teachers cannot confine their teaching to traditional legal material, neither can we confine the substance of what we teach to law (or even law and medicine). In health law, as much as any other course in the curriculum, we must help students become aware of the racial, ethnic, gender, cultural, age, and lifestyle situations of our clients. In so many of the cases we teach or hypotheticals we consider, our clients are affected by their life situations other than their illnesses. For example, until recently the definition of AIDS excluded many women.(23) In dealing with issues of informed consent, different racial or ethnic populations may process information and make decisions differently.(24) Many of our cases involve the elderly(25) or the very young.(26) Many of our clients with AIDS will be gay men or intravenous drug users.(27)

Unfortunately, we can give our clients bad advice for many reasons--we may not know the applicable law, we may not understand the facts, we may fail to use reasonable care in other respects in providing representation. Whether or not provable by a preponderance of the evidence, such failures sound like malpractice, like the errors we try to teach our students to avoid. Bad advice based on prejudice or, if not on prejudice, at least on assumptions that our clients are like us, hold our beliefs, or make decisions similar to those we make,(28) are harder to prevent and harder (and more risky) to incorporate into our teaching.

These questions are harder to work into our teaching because they are not "real law" issues. They are not about doctrine or application. Many of our students and maybe even more of our teaching colleagues are skeptical about the inclusion of such material in our courses. They are more risky to teach because raising issues such as gender, race, sexual orientation, or socioeconomic class invites students to make the comments which almost all teachers dread--"People with AIDS deserve what they get." "Women on welfare should be sterilized."

Remarks such as these raise two difficult dilemmas for me. The first and most immediate is how to respond at that moment. I have stumbled through many different responses and I have rarely been satisfied with the result. There have been times when I have been so stunned by a student's comment that I have ignored it completely, clearly hoping it would go away. It never has. Whenever I have taken this approach I have been confronted (after class, of course) by students who were likewise offended and now were angry with me for not having said anything to the offending student. I would then do two things--explain to the students that they, too, bore responsibility for some type of response(29) and begin the next class by trying to discuss what I found offensive and how I wish I had responded initially. Without exception, coming back on a later day and reopening the issue has been a disaster. While many students will have forgotten the remark or discussed it to their satisfaction outside the classroom, by reopening the discussion, I have also managed to reopen and call attention to the offensiveness. …

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