The Constitution protects, in some measure, each person's autonomy in making basic decisions about family, parenthood, and procreation. This Article examines the extent to which courts should protect from government intrusions a parent's access to technologies that influence specific characteristics of offspring. Beginning with Supreme Court opinions that articulate constitutional and social values regarding reproductive autonomy, the Article explores how important new insights from evolutionary biology may supplement an understanding of Human procreation. Specifically, the Article explains how trait selection can constitute an important part of larger “reproductive strategies” that powerfully affect an individual's “inclusive fitness” (itself a measure of reproductive success). It concludes that access to trait-selection technologies should receive the same federal protection from government intrusions as that afforded access to abortion. It proposes the first limit to that protection, however, when a parent seeks to select for a trait, or to use a technique, that would be clearly and significantly damaging to the future child. The Article subsequently divides the use of trait-selection technologies (TSTs) into eight contexts and proposes a preliminary framework by which a regulatory system could legitimately distinguish among them.

The barriers to women's participation as subjects in biomedical research are currently being challenged as a matter of legislative policy, medicine, and law. This Article catalogs the ways in which women have been disadvantaged by their exclusion and recent developments to redress them, and goes on to dissect the underlying rationales for excluding women from clincial trials. The author reveals the ‘fundamental misconception’ behind exclusionary rationales, and argues that research sponsors in fact have more to fear in the way of potential liability from the exclusion of women, even pregnant women and women of child-bearing capacity, than from their inclusion. Finally, the Article suggests strategies for achieving reform of these exclusionary practices.

Thanks to medical technology, thousands of elderly patients suffer the agony of debility, from which many of them would choose to be released if they knew how to effect a choice. Prolonging their metabolism is unfair to them and to their families, and strains the nation's overburdened health care resources. Medical directives offer elderly patients avenues of escape from unwanted treatment. Health care for the aged should include informed access to these means of choice.

The recent and continual call for tort reform has many scholars proposing alternatives to current U.S. medical malpractice law. Most commentators limit their discussions to variations of the two Anglo Saxon theories of liability — negligence and strict liability. Little has been written examining the legal treatment of medical malpractice in other cultures. This article compares and contrasts Jewish and American medical malpractice law, examining both the contemporary and ancient sources of the law.

This Article surveys alternative approaches by which the advanced industrialized nations seek to cope with the twin problems that health care poses everywhere: the provision of universal access to health care and the control of national spending on health care. Although approaches to these twin problems vary considerably among nations at this time, there may well be a convergence toward a common approach in the next century. Under that approach, all health care systems will be subject to top-down global budgets and will put their health care providers into “statistical fishbowls” that reveal just how effectively these providers allocate the global budgets at their disposal.

Much recent analysis of health care insurance reform emphasizes economic and policy issues. In contrast, this Article examines health policy issues from the viewpoint of medical ethics. The critical ethical “problem” in health care today is that ability to pay determines the availability and quality of care. This Article discusses three types of proposed solutions: health care insurance reform, health care financing reform, and health care cost reform. It sketches an ethical framework for evaluating health policy and presents seven specific propositions that an ethical analysis of health care reform proposals raises. This Article concludes that remedying the unethical treatment of certain classes of patients requires both health care financing reform and health care cost reform; health care insurance reform will not suffice.

Courts in a number of jurisdictions have recently confronted questions of legal parentage concerning children conceived by alternative insemination. Typically, the biological mother is contesting the right of either the sperm donor or a non-biological co-parent to custody or visitation. This Note surveys the current state of the law and demonstrates a lack of protection for the rights of unmarried biological mothers and their co-parents. This Note then proposes a new paradigm for establishing the parties’ rights and obligations, one that reflects the parties’ pre-insemination, mutual intent regarding parenting responsibilities and encourages legal acknowledgement of and protection for the families people are creating with the help of AI.

An announcement in July 1990 concerning the possible transmission of the Human Immunodeficiency Virus from an HIV-positive health care professional to a patient launched a public outcry for patient protection from acquiring HIV from health care professionals. As a result of numerous debates, Congress issued a mandate requiring the states to adopt the Centers for Disease Control and Prevention's guidelines concerning HIV-positive health care professionals or an equivalent policy. This Note explores the regulations and guidelines established by various states in response to this mandate. The author concludes that policies requiring adherence to universal precautions within the health care setting, and not mandatory testing of health care professionals or mandatory disclosure of their HIV status, are best for protecting public health.

Any discussion of health care reform in the United States inevitably draws comparisons from the Canadian model. This Article frames the debate over the merits of the Canadian system by introducing its basic features, exploring its advantages, and discussing its limitations. In evaluating the prospects for a Canadian-type system in the United States, the author focuses on the need to rethink — as Canada has — the viability of market-based approaches to health care.

As health care reform pervades the United States, lawmakers have subjected physician self-referrals to heightened scrutiny. Recent evidence indicates that sending patients to facilities in which a physician has an ownership interest often causes overutilization, overpricing, and lower quality of care. This Note analyzes how physician self-referral arrangements can have negative effects on competition. To combat the adverse effects, the Note examines how enforcing antitrust laws can ameliorate the self-referral dilemma and aid in restoring competition to the health care market. This solution will maintain the doctor's right to invest while protecting the patient's vulnerability.

Breast Cancer remains a leading cause of death among American women, yet little is known about its etiology and prevention. Screening mammography is currently the best preventative measure available to women, but comprehensive oversight of this procedure is necessary in order to minimize and, ultimately, eliminate “errors” that compromise quality and accuracy and give too many women a false sense of security. This Note describes our nation's battle against Breast Cancer, emphasizes the need for uniform, mandatory quality and safety standards for screening mammography, and outlines The Mammography Quality Standards Act of 1992, which seeks to provide the framework necessary to implement such standards and restore the preventative power of this procedure. This Note analyzes the terms of the Act and concludes that the Act could provide women with the true sense of security that has eluded so many women - too many women - for so long.

Health care expenditures in the United States have continued to grow despite efforts to control them. This Article discusses the need for health care reform, outlines the model that reform should follow, and considers why the United States has not progressed toward a workable solution. It introduces a single-payer approach to cost containment and explains how such an approach could be “sold” in the United States. Finally, the Article examines various ways to mobilize support for such health care reform.

In recent years, many states have attempted to address the cost and access problems that face their health care systems. Such efforts, however, are significantly impeded by a variety of federalism doctrines that limit the ability of states to regulate the health care market. This Article surveys some of those federalism barriers, including the constitutional restraints imposed by the Commerce Clause, the Privileges and Immunities Clause, and the Fourteenth Amendment, and the statutory hurdles created by ERISA, the Social Security Act, and the Americans with Disabilities Act of 1990. This Article concludes that the restraints that these doctrines and statutes place on states reflect not only federalism concerns, but also deeper ambivalence about governmental regulation of the health care market. Only when that ambivalence is resolved can a proper division of labor between the states and federal government be determined.

Even as the Clinton administration considers an increased federal commitment to mental health care, delivery of such care remains fixed at the state level. In Massachusetts, state officials are privatizing mental health care on an unprecedented scale, an experiment that promises to provide better care at lower cost. This Note explores whether privatization can achieve that lofty goal, given a legal system that has made individual patient autonomy its preeminent value. The author concludes that wide-scale privatization and modern notions of self-determination can only coexist with a significant investment in the support services that are critical to the community tenure of former state hospital patients.