Category: James Toomey

Professor S. Matthew Liao of NYU presented a paper last week at the Health Law, Bioethics, and Biotechnology Workshop. Liao’s theory of rights-worthiness is based on the presence of a genetic basis for a moral sense. So babies, fetuses, the vegetative, all are human rights-holders, other animals are presumptively not (but could be if we found they had the genes for moral sense) and, with a little line drawing about the nature of an organism, corpses are excluded.

It is, perhaps, a somewhat strained effort to justify a deep moral intuition that all human beings, no matter how brain-damaged, are entitled on their own merit to a full panoply of human rights.

Personally, I’m skeptical. Read More

Many countries are skeptical of biotechnology. Restrictions on cloning, in vitro fertilization, surrogacy, and genetic modification in agriculture are common. But perhaps no country goes quite as far as Switzerland.

In the early 1990s, Switzerland added to its constitution by popular referendum two articles that restrict the use of biological technologies in its Confederation. Article 119 bans the traditional bugaboos of human bio-conservatives (cloning, surrogacy, human genetic intervention, etc.), and further stipulates that legislation on any new technologies must “ensure[] the protection of human dignity.” Article 120 mandates that legislation related to biological technologies in other organisms must “take into account . . . the dignity of living beings . . .” What?

Read More

After his wife died, Tom, 83, lived with a caretaker. His daughter was worried. Tom wasn’t his old self. He was getting slower, repeated himself, didn’t seem to remember things that mattered. But when Adult Protective Services interviewed him, they thought he seemed fine. Later, when his daughter finally managed to get him into court to appoint a guardian, they discovered that the caretaker had made off with most of his savings.

Meanwhile, Patricia, 85, lived alone. She had some mild cognitive impairment, that was obvious. She didn’t get jokes the way she used to, seemed withdrawn, and her memory wasn’t as sharp. But she could get around on her own. She managed her finances and made her own decisions. A nephew disagreed. He referred her case to a doctor who found that her impairment had progressed to mild dementia, and a court declared the nephew her temporary guardian. If she hadn’t by chance run into an old friend who was an elder law attorney, the nephew would have stolen the tens of thousands of dollars he planned to.

These anecdotes were recently related to me by Professor Peter Lichtenberg of Wayne State University, a clinical psychologist and national expert on the financial exploitation of seniors. We met at last April’s conference “Our Aging Brains” at Harvard Law School, where panelists demonstrated the challenges—and profound stakes measured in human suffering—involved in a legal ruling that an individual with dementia either has or lacks legal capacity.

Read More