The conflict between pregnant women freely using cocaine and the well-being of fetuses presents a difficult social problem. Since 1985, at least 200 women, in thirty states, have been criminally prosecuted for using illicit drugs or alcohol during pregnancy. Such policies enjoy considerable public and political support. Nonetheless, treatment programs that include referral to law enforcement officials raise serious ethical and legal issues for hospitals and health care providers. In this paper, we assess the development of one medical university's controversial treatment program for pregnant women addicted to cocaine.

In October 1989, the Medical University of South Carolina (MUSC) instituted a new program, called the Interagency Policy on Management of Substance Abuse During Pregnancy (Interagency Policy), designed “to ensure appropriate management of patients abusing illegal drugs during pregnancy.” This program required some pregnant women to seek drug counseling and prenatal care under the threat of criminal sanctions.

There is something about the debate over reproductive technologies of all kinds—from coerced use of Norplant to trait-selection technologies, to issues surrounding in vitro fertilization (IVF), to fetal tissue transplantation—that seems to invite dubious analogies. A Tennessee trial court termed Mary Sue and Junior Davis's frozen embryos “in vitro children” and applied a best-interests standard in awarding “custody” to Mary Sue Davis; the Warnock Committee drew an implicit analogy between human gametes and transplantable organs in its recommendation of a voluntary, nonprofit system for collecting and distributing gametes in the United Kingdom; Owen Jones compares the right to trait-selection to the right to abortion; Robert Veatch once claimed that if a woman had signed an organ donation card and then died while pregnant, she had in effect given consent to the attempt to sustain the pregnancy after her death; John Robertson has argued that contract pregnancy poses no problems we have not already encountered with adoption; and Andrea Bonnicksen has compared the wonders of preembryonic genetic screening to the riches housed in the gold museum in Bogota, Colombia.

What I propose in this article is application of existing dispute resolution practices that take place outside the courtroom to the negotiating that takes place between health providers and families when they try to reach agreement about the limits of medical care that arguably is futile. Specifically, I focus on a bargaining paradigm that is associated with divorce proceedings, and suggest how this paradigm is at work in the conflict about futile treatment. At issue are not the well-publicized aspects of high profile cases, but the rather unpublicized bargaining that goes no further than the clinical setting.

Physicians and families who disagree about the futility of medical treatments frequently engage in give-and-take exchanges about whether to start disputed treatments, about what period of time might comprise a reasonable trial period if a treatment is to be administered, and about when and how to transfer a patient to another facility if the dispute cannot be resolved.

How ought we to understand the sources and limits of the authority of family members to make health care decisions for their decisionally incapacitated relatives? This question is becoming increasingly crucial as the population ages and the power of medical technology waxes. It is also becoming increasingly contested, as faith in advance directives shows signs of waning, and the moral complexities of intimate relationship become more theoretically patent.

This last point—the newly visible moral richness of intimate relationship—provides this paper with its field. I am interested in probing the images of the relationship between self and other, particularly self and intimate other, that seem presupposed by some leading attempts to determine the basis for proxy decision-making authority, and what constraints it must observe. In the light of both recent work in the philosophy of mind and considerations closer to common experience, the reigning images seem too slight to support the weight of current practices and beliefs about proxy authority; supplanting them with images more faithful to our experience will have implications for our practice with proxies.

Resource finitude, cost containment, and a purchaser monopsony market have created public concern-about the moral and legal responsibility for quality assurance in health plans. Resource allocation and standards of care represent a clash of moral values in intensive care treatment. This essay advances a procedural model, based on legislation passed in Oregon, that could govern the incorporation of private sector health insurance plans in Oregon to assure democratic input from consumers, providers, and employers into a limited vision of individual entitlement to consume futile or inappropriate care in intensive care units (ICUs). The model, which I call the Oregonian ICU, presumes that rationing of care is implicit and not publicly disclosed under managed care. It focuses on maximizing the quality of limited benefits available in the basic managed care insurance tier. Limitations to futile and inappropriate care are developed on the basis of morally weighted prognostic scoring systems that inform the creation of negotiated private sector contracts.

As a consequence of the problems caused by genetic discrimination, federal and state law makers are being pressured to pass a legislative remedy. A primary question is whether the Americans with Disabilities Act of 1990 (ADA) applies to (1) individuals with a potentially disabling genetic disorder who are pre-symptomatic or asymptomatic and may never become ill and to (2) healthy individuals who are carriers of genetic conditions. At present, this question has relevance principally for individuals with the genotype for single gene disorders, like Huntington disease and hemochromatosis, and to asymptomatic carriers of single gene disorders such as cystic fibrosis. Although many such single gene conditions exist, the total incidence of these conditions in the U.S. population is less than 0.4 percent. However, the question concerning the applicability of the ADA will become increasingly important because genetic tests will almost certainly be developed in the near future for common multifactorial diseases like diabetes, heart disease, and certain forms of cancer.

In 1982, the President's Commission produced its report on human gene therapy. One of that report's recommendations was to expand the Recombinant DNA Advisory Committee (RAC) to the National Institutes of Health to include a subcommittee on human gene therapy. In 1984, the Human Gene Therapy Subcommittee was established, and in 1989 it produced a document—“Points to Consider for Protocols for the Transfer of Recombinant DNA into Human Subjects”—that stated the RAC's position on what sorts of protocols it would approve.

In assessing the impact of the President's Commission report, Alexander Capron wrote,

It is undeniable that health care costs have been increasing at an alarming rate. During the ten-year period between 1983 and 1993, the medical care component of the Consumer Price Index (CPI) rose at an average annual rate of 10 percent while the overall CPI increased by only 4.5 percent per year. These dramatic increases have obvious societal implications. For those without health insurance, a serious illness may mean personal bankruptcy. For those with health insurance coverage, premiums are rising while coverage is shrinking. Employers are struggling to continue providing health insurance to their employees. Irrespective of whose fault it really is, much of the blame has been directed at health care providers.

Faced with mounting criticism regarding the costs of delivering health care, the industry struck back. It claimed that collaboration—not competition—was necessary to reduce health care costs and improve efficiency, but that antitrust uncertainty deterred such collaborative efforts.