Chapter 7.C.1 (or 5.C.1) -- Introduction
a. State Law and Fetal Personhood
The Kentucky Supreme Court rejected both wrongful birth and wrongful life claims based on failure to diagnose a medical condition which precluded informed decision-making about whether to procure an abortion in Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d 682 (Ky. 2003) (“Although the parents in the instant cases allege that their injury was in being deprived of accurate medical information that would have led them to seek an abortion, we are unwilling to equate the loss of an abortion opportunity resulting in a genetically or congenitally impaired human life, even severely impaired, with a cognizable legal injury.”) The court suggests that a breach of contract claim could be brought against the physicians who “perform[ed] and charg[ed] for diagnostic procedures” but the majority opinion does not discuss the appropriate measure of damages.
Criminal Law Update
Many states reviewed criminal laws governing fetuses in the aftermath of the Scott Peterson murder prosecution. Kirk Johnson, Harm to Fetuses Becomes Issue in Utah and Elsewhere, The N.Y. Times, March 27, 2004, at A9 col. 1 (summarizing state proposals). See also, National Conference of State Legislatures, Fetal Homicide Laws, available at:
http://www.ncsl.org/programs/health/fethom.htm (last visited July 20, 2006).
Stem Cell Research Update
The National Conference of State Legislatures tracks state legislation related to stem cell research; see http://18.104.22.168/programs/health/genetics/embfet.htm (last visited July 20, 2006). A few states have focused on initiatives designed to provide funding for stem cell research at the state level. See, http://www.ncsl.org/programs/health/genetics/esstatefunds.htm (last visited July 20, 2006).
The U.S. Senate joined the House in voting to expand access to federal funding for human embryonic stem cell research in July 2006, eliciting President Bush’s first use of his veto power. Sheryl Gay Stolberg, First Bush Veto Maintains Limits on Stem Cell Use, N.Y. Times, July 20, 2006.
For articles describing stem cell research and the implications for research law and ethics see, Evan Snyder & Jeanne Loring, Beyond Fraud – Stem Cell Research Continues, 354 New Eng. J. Med. 321; and Robert Steinbrook, Egg Donation and Human Embryonic Stem-Cell Research, 354 New Eng. J. Med. 324.
b. Federal Recognition of Fetal Interests
Congress passed and President Bush signed the “Unborn Victims of Violence Act of 2004.” Pub.L. 108-212, § 2(a), Apr. 1, 2004, 118 Stat. 568 to be codified at 18 U.S.C. §1841.
See also, Janet L. Dolgin, Embryonic Discourse: Abortion, Stem Cells, and Cloning, 31 Fla. St. L. Rev. 101 (2003)