Can justice keep up? Courts faced with interpreting impact of medical advances

As science speeds forward, the courts are left to sort out the implications of many of the advances it creates.

By Tanya Albert, AMNews staff. Nov. 25, 2002.

Is a child born through in vitro fertilization two years after his father has died eligible for Social Security benefits? And now that physicians can determine a person's susceptibility to certain diseases through genetic testing, how should they counsel patients and their relatives? And what happens to frozen embryos couples create if they decide to divorce?

Medical advances tend to create technical and/or moral questions that patients, physicians and politicians on the front lines are left to ponder. And while legislatures can try to manage these social questions by passing laws, it's often the court system -- through interpretation of those laws -- that puzzles out the answers.

Some new tools, such as telemedicine and online prescribing, bring about technical issues that must be addressed. But other advances, particularly those in the area of reproduction, have allowed physicians to offer treatments that have left some sticky issues in their wake.

It could be said that the law generally lags behind science when it comes to answering these types of questions. But in reality, that's the nature of law.

"The law is not the proactive arm of the government," said Terry Gaffney, a Washington, D.C.-based lawyer who specializes in pharmaceuticals and medical devices with the law firm Womble Carlyle. "When there are problems, that is when people come to the law."

The Massachusetts Supreme Court tackled the in vitro issue, saying that a child born through in vitro fertilization after a parent dies is eligible for Social Security. That, perhaps, was one of the easier questions to answer. Others can get a bit stickier. [...]