Law and Bioethics—Intersections along the Mortal Coil by George P. Smith, II (review)

I

Professor George P. Smith is an alumnus of Indiana University. He has taught medical law and ethics in universities in the United States, Britain, Australia, and many other countries. His upbringing in Indiana has kept his feet firmly planted on the ground. In a field of discourse where it is easy to get carried away with theory and speculation, Professor Smith has based his analysis, ultimately, on the wisdom of ordinary folks.

This is not to say that he is uninterested in, or unaware of, the philosophical, theological, and theoretical writings relevant to his chosen topics. This new book is replete with evidence of his deep research into the writings of great scholars in the fields of law, economics, political science, philosophy, and theology. However, he is not content with purely formalistic and verbal analysis of the quandaries presented to humanity by advances in biological knowledge and connected technologies. In his chosen field, above all, there are human beings who are disabled, disadvantaged, sick, and dying at the end of the discourse. For Professor Smith, this basic reality demands, ultimately, a principled but compassionate stance on the acute problems with which he has been struggling for over nearly four decades of his professional life. This book of essays is the latest in a series of impressive monographs, articles, and other contributions that explore the puzzling problems of medical law and its insistent stimulus by "The New Biology."

The book is divided into eight chapters. Gradually, the chapters take the reader through a journey of the mind that explores contemporary bioethical challenges. The book searches for stable and reliable criteria to tackle and answer these challenges. It embraces as highly relevant and helpful the universal principles of human rights that have emerged since Eleanor Roosevelt's Universal Declaration of Human Rights (UDHR).¹ It then concludes with a number of specific chapters on particular problems. The last of these chapters focuses on aspects of death and dying and explores the ultimate puzzle of human consciousness and existence: the end. It does this from the standpoint of the added dilemmas that are presented to us by modern life-saving technology.

For those who are searching for simple, cut-and-dried solutions to the problems of medical law and bioethics, this book will be a disappointment. It does not gloss over the problems, uncertainties, and legitimate differences that exist in this area of discourse. Professor Smith's considerable mind, now enriched with vast experience in his field, disdains such simplicities as unworthy of the human moral sense and incompatible with the complexities of contemporary biotechnology. In this respect, early grounding in the highly practical attitudes and approaches of the common law comes to his aid.

In the common law, there is never, ultimately, a lacuna in the law. If there is a gap, unfilled by the norms of a national or subnational constitution; untouched by federal, state, or other legislation; and upon which the common law is silent, judges have the authority and duty to fill the gap. They do so by applying logic and analogy to any relevant legal principles. They use their common sense and their perception of justice to impose a legal solution that best fits a detailed understanding of the facts. It is because the facts relevant to decisions on medical law are constantly changing, in terms of human knowledge in basic biology and human acquaintance with new technology, that medical law and bioethics are so disputed and contested. Different observers simply see different facts or regard different principles as relevant to those facts. Professor Smith has written his latest book to untangle some of the ensuing debates.

II

The first chapter is an introduction and overview. It begins dramatically enough with what the author calls "synthetic biology." Synthetic biology is the development of new life forms by human intervention. One particularly tantalizing development is a "synthetic cell" controlled entirely by a bacterial genome. Dr...