Law - My Sister's Keeper

Anna’s court case addresses several legal concepts which have been created and argued over at all levels of the US the court system. They include incompetent, mature minor, autonomy, and due process, all issues concerning the rights of children to make decisions on their own behalf. Informed consent is a term specific to medical decisions, as well as a pivotal measure for whether the child or parents should make medical decisions for a minor.

Schlam and Wood explain that before the twentieth century children were generally considered the property of their parents, but this began to change mid-century. In their article, Informed Consent to the Medical Treatment of Minors, “[c]hildren’s rights were strengthened in 1967, when the Supreme Court determined that the Fourteenth Amendment’s due process clause also applied to children. Children were now considered ‘person’s under our Consitution’, and were given rights….. “ (Schlam and Wood).

Another article concerning medical decisions and minors is Samuel Tilden’s Ethical and Legal Aspects of Using an Identical Twin as a Skin Transplant donor for a Severely Burned Minor (Tilden). It describes the case of particularly young minors—the twins are six-years-old. Can the parents decide on behalf of the donor child whether the transplant is in her best interests? Is that decision legally and ethically different from the decisions they make on behalf of her sibling recipient? In this carefully researched and argued article, Tilden includes a range of examples that offer precedence, including medical decisions made on behalf of “incompetent” adults and their minor siblings. He also outlines the considerations that haunt parents, surgeons and judges as they deliberate and decide.


Working bibliography
Below are some additional books and articles of possible interest:

• Aasi, Ghulam Haider. "Islamic Legal and Ethical Views on Organ Transplantation and Donation." Zygon 38.3 (2003): 725-34.

• Anderson, Mark F. "The Prisoner as Organ Donor." Syracuse Law Review 50.3 (2000): 951-79.

• Caplan, Arthur L. "Organ Transplants : The Costs of Success - an Argument for Presumed Consent and Oversight." Hastings Center Report 13 (1983): 23-32.

• Capron, Alexander M. "Reexamining Organ Transplantation." JAMA: Journal of the American Medical Association 285.3 (2001): 334-36.

• "Death of an Idea: The Anencephalic as an Organ Donor." Texas Law Review 72.4 (1994): 893.

• Frydman-Kohl, Baruch. ""Choose Life": Organ Donation and Jewish Law." Ecumenism.142 (2001): 9-13.

• Gay, Sebastien, and Alberto Abadie. "The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross Country Study." NBER Working Papers 10604 (2004).

• George, Alexandra. "Is 'Property' Necessary? On Owning the Human Body and Its Parts." Res Publica 10.1 (2004): 15-42.

• Gerson, William N. Refining the Law of Organ Donation: Lessons from the French Law of Presumed Consent, 1987.

• Gorsline, Monique C., and Rachelle L.K. Johnson. "The United States System of Organ Donation, the International Solution, and the Cadaveric Organ Donor Act: "and the Winner Is ...."(Symposium: Organ Donation)." The Journal of Corporation Law 20.n1 (1994): 5-50.

• Griner, Robert W. "Live Organ Donations between Siblings and the Best Interest Standard: Time for Stricter Judicial Intervention." Georgia State University Law Review 10.n3 (1994): 589-613.

• Grundmann, Johannes. "Scharia, Brain Death and Organ Transplantation: Context and Effect of Two Islamic Legal Judgments in the near and Middle East." Orient - Deutsche Zeitschrift fur Politik und Wirtschaft des Orients 45.1 (2004): 27-46.

• Hogle, Linda F. "Public Good, Private Protections: Competing Values in German Transplantation Law." Law & Policy 24.2 (2002): 115-32.

• Hunter, Jeanna. "Consent for the Legally Incompetent Organ Donor: Application of a Best-Interests Test." Journal of Legal Medicine 12.n4 (1991): 535-57.

• Kurtz, Sheldon F., and Michael J. Saks. "Cadaveric Organ Donor Act; Living Organ Donor Act. (Drafts and Accompanying Reports on a Proposed Federal Law)." The Journal of Corporation Law 18.n3 (1993): 523-618.

• Morris, John Robert. "Constitutional Law : Substantive Due Process and the Incompetent Organ Donor." Oklahoma Law Review 33.n1 (1980): 126-39etc.

• "Organ Donation in the United States: Can We Learn from Successes Abroad?" Boston College International and Comparative Law Review, Vol. 17, Issue 2 17.2 (1994): 405.

• Perales, Donny J. "Rethinking the Prohibition of Death Row Prisoners as Organ Donors: A Possible Lifeline to Those on Organ Donor Waiting Lists." St. Mary's Law Journal 34.3 (2003): 687-732.

• Schlam, Lawrence, and Joseph P. Wood. "Informed Consent to the Medical Treatment of Minors: Law and Practice." Health Matrix: Journal of Law Medicine 10 (2000): 141-74?

• Tilden, S. J. "Ethical and Legal Aspects of Using an Identical Twin as a Skin Transplant Donor for a Severely Burned Minor." American Journal of Law & Medicine 31.1 (2005): 87-116.

• Weisz, Victoria. "Psycholegal Issues in Sibling Bone Marrow Donation." Ethics & Behavior 2.3 (1992): 185-201.

• Youngner, Stuart J., Martha W. Anderson, and Renie Schapiro. Transplanting Human Tissue : Ethics, Policy, and Practice. Oxford University Press, 2004.
  

Jumpstart your research
To jumpstart a research project, always begin with the Duke Libraries homepage at http://library.duke.edu/ which will direct you to materials, experts and research tools on your topic.

BOOKS:
For books, look in Duke’s catalog for additional titles. Try the following Library of Congress Subject Headings:

• Donation of organs, tissues, etc.
• Informed Consent (Law)
• Tissue and organ procurement

ARTICLES:
To find recent articles, start with LegalTrac which indexes 1900 scholarly journals in law and related subjects. (Go to the “Databases A-Z” link and look under “L”). Also use LexisNexis Academic’s section on Legal Research to search in law reviews, legal news, and federal and state case law.