Designer Babies, Robot Malpractice, and the Cures for Cancer: a Legal Survey of Some Medical Innovations
One of the elegant aspects of law is that it enables society to apply simple but robust rules to complex phenomena.1 Although lawyers are not doctors, 2 they are often required to distill simple and essential facts from complex medical phenomena to apply rules of law to resolve disputes between parties. Similarly, although legislators are not doctors, their regulatory schema and legislative prescriptions affect medical research. This process has the power to retard or support the progress of medical innovation.
Recent advances in computer science and genetic research have made certain medical phenomena more complex, yet more promising. A group of new innovations – CRISPR, immunotherapy, and artificial intelligence – has been touted as fundamentally changing the nature of medicine. Whether these claims will turn out to be true is not for us to answer here. Instead, this article hopes to demonstrate both that none of these advances pose insoluble legal quandaries and that the perennial debates that exist in the medical law literature today graft nicely onto these new breakthroughs.
The purpose of this article is two-fold – first it aims to introduce these breakthroughs to the legal community. Although lawyers and judges can rarely participate in basic scientific research, except as subjects, lawyers are generally smart people who can contribute in other ways. For example, they can render relevant judicial opinions, help craft model laws and regulations, or espouse certain bioethical views in the court of public opinion. As will be mentioned below, medical research does not occur in a social vacuum, and legislative and regulatory barriers can often be as large as scientific ones. Former head of the National Cancer Institute Dr. Vincent DeVita wrote, “Too often, lives are tragically ended not by cancer but by the bureaucracy that came with the nation’s investment in the war on cancer . . . .” 3 This article hopes to arouse excitement in the legal community around these advances to spur legislative and regulatory reform.
