Marie Fox

LEGAL EMBODIMENT: ANALYSING THE BODY OF HEALTHCARE LAW

In this essay and the contributions that follow, we advocate an expansion of the parameters of mainstream healthcare law to include feminist analyses of embodiment. We suggest that a more thorough engagement with the meaning and value of embodiment can better inform normative assessment and critical appraisal in healthcare law. Laws conventional approach to regulating bodily interventions has been to consider the body as an object of analysis rather than as a category of analysis. In our view, legal analysis could offer a richer understanding of laws engagement with bodies and bodily materials if it adopted a thicker conception of embodiment. Such a conception would seek to account for the ways in which we value the living physical body as it enables our being in the world and our interactions with others. We argue that in framing our understandings of embodiment, healthcare law would benefit from employing cultural studies methods, as well as the bioethical analysis on which it has traditionally drawn. In particular, we view feminist scholarship on embodiment as a key resource for thinking through such a shift in parameters and methodology. Building on this work, we argue for a shift from more familiar notions of sexual difference to embodied differences. This would direct attention to the myriad ways in which law values or denigrates bodies and the choices we make about our bodies. We suggest that healthcare law has implicitly considered the body in three key ways—as an object of choice, a site of property and a source of vitality. We then argue that a more explicit conception of legal embodiment entails four key dimensions—subjective, intersubjective, material and symbolic—which in combination offer a normative and critical framework1 for deciding which values act as trumps in a given situation and for assessing how and why a particular value or combination of values come to be perceived as important in a given moment.

HIV/AIDS and circumcision: lost in translation

In April 2009 a Cochrane review was published assessing the effectiveness of male circumcision in preventing acquisition of HIV. It concluded that there was strong evidence that male circumcision, performed in a medical setting, reduces the acquisition of HIV by men engaging in heterosexual sex. Yet, importantly, the review noted that further research was required to assess the feasibility, desirability and cost-effectiveness of implementation within local contexts. This paper endorses the need for such research and suggests that, in its absence, it is premature to promote circumcision as a reliable strategy for combating HIV. Since articles in leading medical journals as well as the popular press continue to do so, scientific researchers should think carefully about how their conclusions may be translated both to policy makers and to a more general audience. The importance of addressing ethico-legal concerns that such trials may raise is highlighted. The understandable haste to find a solution to the HIV pandemic means that the promise offered by preliminary and specific research studies may be overstated. This may mean that ethical concerns are marginalised. Such haste may also obscure the need to be attentive to local cultural sensitivities, which vary from one African region to another, in formulating policy concerning circumcision.

FORESKIN IS A FEMINIST ISSUE

Debate on the ethics and legality of non-therapeutic infant male circumcision has grown in prominence in recent years. These discussions have tended to be dominated by heavily contested cost benefit analyses of male genital cutting. It is recognised increasingly that the procedure involves quantifiable health risks, although these continue to be downplayed by proponents of circumcision. Following a distinctive discursive pattern, mainstream commentary typically concludes that the medical evidence is inconclusive, and hence, given the social, cultural and religious value of circumcision to some communities, that the decision can ethically and legally be entrusted to the child’s parents (see Fox and Thomson 2005a). In this paper we contend that the focus on current medical rationales is problematic and marginalises important concerns. Firstly, it serves to obscure an instructive history:

Taking Dogs Seriously

This paper focuses on the ethics of human interventions in the lives of companion animals. It argues that human interaction with dogs can reveal much about what makes us human, but that in order to take dogs seriously and engage with them in an ethical manner we must interrogate a number of practices that have been accepted in dog breeding and owning circles. Here my focus is on querying the ethics of practices that involve direct corporeal interventions on the bodies of dogs, in particular legal attempts to prohibit tail-docking. Although Donna Haraway’s work is a major influence on the paper, I depart from her analysis in arguing that suffering must remain the keystone of our ethical relation to companion animals.

REALISING SOCIAL JUSTICE IN PUBLIC HEALTH LAW

Law has played an important, but largely constitutive, role in the development of the public health enterprise. Thus, law has been central to setting up the institutions and offices of public health. The moral agenda has, however, been shaped to a much greater extent by bioethics. While social justice has been placed at the heart of this agenda, we argue that there has been little place within dominant conceptions of social justice for gender equity and womens interests which we see as crucial to a fully realised vision of social justice. We argue that, aside from particular interventions in the field of reproduction, public health practice tends to marginalise women-a claim we support by critically examining strategies to combat the HIV pandemic in sub-Saharan Africa. To counter the marginalisation of womens interests, this article argues that Amartya Sens capabilities approach has much to contribute to the framing of public health law and policy. Sens approach provides an evaluative and normative framework which recognises the importance of both gender and health equity to achieving social justice. We suggest that domestic law and international human rights provisions, in particular the emerging human right to health, offer mechanisms to promote capabilities, and foster a robust and inclusive conception of social justice.

Reconsidering ‘Best Interests’

Recently the ethics of infant male circumcision has generated a considerable debate in bioethics journals. In previous publications we have sought to argue that, by contrast, healthcare lawyers have unjustifi ably neglected the topic, accepting a dominant characterization of male circumcision as a standard and benign medical practice, which parents can choose for their children free of legal scrutiny. In this paper, we seek to problematize both the way in which male circumcision is debated in the ethics literature and how it is constructed as a non issue for healthcare lawyers. We are concerned here particularly with the cost/benefi t analysis that has underpinned professional guidance and court decisions on the legitimacy of male circumcision. We argue that how these costs and benefi ts have played out in the ethico-legal debates and assessments as to what is in the best interests of the child are highly problematic.

The Legal Regulation of Primate Research

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Older Minors and Circumcision: Questioning the Limits of Religious Actions

On two occasions the Court of Appeal in England has addressed the legality of non-therapeutic circumcision performed on a minor unable to provide consent. Both cases involved disputes in post-separation families where one parent sought a male child’s circumcision against the wishes of the other parent. In January 2008, the Supreme Court of Oregon was faced with a similar factual situation in the case of Boldt v Boldt. However, the boy at the center of the dispute in Boldt was significantly older than in the English cases. The Supreme Court therefore concluded that the testimony of the boy himself, who is now 13, was required and remanded the case for a re-hearing in order that the trial court could specifically address his wishes with regard to circumcision. In this paper, we offer a critique of the Oregon Court’s somewhat elliptical reasoning in the Boldt case. We argue that cases involving male circumcision of older children raise important ethico-legal issues, which the Boldt judgments gloss over, and which English courts have yet to confront in the context of circumcision. Consequently, our aim in this paper is to use Boldt as a lens through which to explore and inform UK practice. We argue that this case fits into a characteristic pattern according to which judges, law makers, and professional bodies shy away from confronting key ethico-legal questions raised by the tolerance in Anglo-American society of non-therapeutic genital cutting of male infants. In raising explicitly for the first time the position of older minors, the factual situation in Boldt affords us an opportunity to begin to address the limits of parents’ rights to determine the future religious identity of their children. In seeking to analyze how Boldt and the questions to which it gives rise might inform UK law we focus on three issues. The first is the right of the boy at the center of the dispute to determine which medical treatments or interventions to his body are permissible. The father’s subsequent petitions for reconsideration and for certiorari mean that, when the boy’s testimony is finally heard by a court, it is likely that he will be 14 or 15 years of age. We aim to assess how a UK court might respond if faced with the task of determining whether a minor could choose circumcision for himself in such a scenario. A subsidiary question here is the extent to which circumcision procedures are appropriately categorized as “medical treatment.” Finally, we offer some more tentative thoughts on what limits may legitimately be placed on parental rights to make choices for their children when their choices are motivated by religious belief.

Reconciling Autonomy and Beneficence in Treatment Decision-Making for Companion Animal Patients

This article explores how the concept of consent to medical treatment applies in the veterinary context, and aims to evaluate normative justifications for owner consent to treatment of animal patients. We trace the evolution of the test for valid consent in human health decision-making, against a backdrop of increased recognition of the importance of patient rights and a gradual judicial espousal of a doctrine of informed consent grounded in a particular understanding of autonomy. We argue that, notwithstanding the adoption of a similar discourse of informed consent in professional veterinary codes, notions of autonomy and informed consent are not easily transferrable to the veterinary medicine context, given inter alia the tripartite relationship between veterinary professional, owner and animal patient. We suggest that a more appropriate, albeit inexact, analogy may be drawn with paediatric practice which is premised on a similarly tripartite relationship and where decisions must be reached in the best interests of the child. However, acknowledging the legal status of animals as property and how consent to veterinary treatment is predicated on the animal owner’s willingness and ability to pay, we propose that the appropriate response is for veterinary professionals generally to accept the client’s choice, provided this is informed. Yet such client autonomy must be limited where animal welfare concerns exist, so that beneficence continues to play an important role in the veterinary context. We suggest that this ‘middle road’ should be reflected in professional veterinary guidance.

Pioneering Healthcare Law: Essays in Honour of Margaret Brazier

Margaret Brazier has been described as one whose work ‘light[s] the way’1 for those that follow, the ‘paradigmatic female role model for young academics’2, and as a ‘lawyer, whose heart is in the law’.3 We agree and argue that Brazier has a distinctive way of both analysing legal issues and evaluating legal problems. This chapter identifies and examines the distinctive elements of the Brazier method. Drawing on this method, and a case study, we argue that she has made a fundamental contribution to the development of healthcare law. Brazier has highlighted the importance of recognising the humanity of different stakeholders in the healthcare enterprise. Particularly important is her recognition of the fallibility and vulnerability of healthcare professionals alongside patients. Where previously medical law was a tool for confrontation between human patients and machine-like doctors, Brazier has facilitated its evolution into a new role as mediator between fallible and vulnerable players.This book celebrates Professor Margaret Braziers outstanding contribution to the field of healthcare law and bioethics. It examines key aspects developed in Professor Braziers agenda-setting body of work, with contributions being provide by leading experts in the field from the UK, Australia, the US and continental Europe. They examine a range of current and future challenges for healthcare law and bioethics, representing state-of-the-art scholarship in the field.