During the past decade, a new term has entered the medical/legal lexicon : maternal-fetal conflict. Implicit in the terminology is the assumption that a pregnant woman and her fetus have separate and competing rights. This concept has stimulated extensive legal and ethical debate, primarily in the context of medical interventions (cesarean sections and blood transfusions) forced on unwilling pregnant women, and in corporate efforts to bar fertile women from hazardous jobs. On one side of the debate are the proponents of the future child's right to be born of sound mind and body, and society's interest in the delivery of healthy newborns. On the other side, are advocates of a woman's right to reproductive autonomy, bodily integrity, due process, confidential medical treatment, and freedom from gender discrimination. Neither side has challenged the formulation of the problem, or has examined its permeation into public health policy.

The debate about medical futility is no longer in its infancy. Scholarly literature on this seemingly intractable problem is voluminous. The list of widely publicized cases in which physicians have wanted to discontinue life-sustaining medical treatment that families demand has grown to include not just Helga Wanglie, but also Baby Rena, Baby L, Jane Doe, Joseph Finelli, Baby K, and Teresa Hamilton. A futility case has now been decided at the appellate court level.

Commentators have generated three kinds of proposals for resolving these conflicts. One group contends that the problem can be solved within the physician-patient-family relationship. While some in this group view professional authority broadly enough to warrant unilateral judgments by physicians that interventions desired by the patient or family should not be provided, others contend that physician authority does not extend that far, and that any resolution must be constrained by informed consent requirements.

In American Dental Association v. Martin, the United States Court of Appeals for the Seventh Circuit reviewed a challenge to a rule of the Occupational Safety and Health Administration (OSHA). In December, 1991, OSHA passed a standard to protect health care workers from viruses transmitted by blood—bloodborne pathogens—including the hepatitis B virus (HBV) and the human immunodeficiency virus, the virus known to cause AIDS. Three health care organizations, whose members are dentists, medical personnel firms, and home health employers, petitioned the court to review OSHA's rule.

The Occupational Safety and Health Act was passed to assure employees that they would have as safe and healthy a working environment as feasible. Congress sought to ensure this by vesting the Secretary of Labor for Occupational Safety and Health with the authority to promulgate mandatory safety and health standards. In promulgating standards concerning toxic materials or harmful physical agents, the secretary sets rules that most adequately assure that an employee will not suffer a material impairment of health or functional capacity while performing work-related duties.

Spielman’s taxonomy of collective decision making about medical futility is timely and insightful. Her conclusion, that laws are the best reflection we have of collective values, may be accurate. However, a closer look at the six alternatives for collective decisions is necessary before we rely too heavily on the legislature.

The first two alternatives, decisions by professional organizations and by health care facilities, smack of paternalism. Spielman suggests that statements from professional organizations or health care facilities express professional values and lack adequate input from the public. Could it be that some of these statements in fact may be the best reflections of public attitudes?

On March 9, 1993, in the first ruling of its kind, the Maryland Court of Appeals declared that physicians and hospitals may be sued for failing to inform patients of a practitioner’s human immunodeficiency virus (HIV) status. What is more significant, these suits may be pursued even in instances when the physician has followed universal precautions and the patient did not contract the virus that causes acquired immunodeficiency syndrome (AIDS). The Maryland court addressed two central questions in Faya v. Almaraz. First, do HIV-infected physicians have a legal duty to inform their patients of their HIV status? And, second, can patients recover damages for fear induced by a physician’s conduct? While one finds numerous precedents that authorize actions to recover damages based purely on fear of disease and emotional distress, the Faya court’s holdings on the issue significantly expand the scope of potential liability. Moreover, the court’s analysis of the informed consent and HIV-infected physician issue is incomplete, inconsistent, and represents an unjustified and unwise departure from traditional informed consent theory. It, and its progeny, may have widespread and dire repercussions.

Access to abortion is becoming increasingly restricted for many women in the United States. Besides the longstanding financial barriers facing low-income women in most states, a newer source of scarcity has emerged. The relatively small number of physicians willing to perform the procedure is compromising the ability of women in certain parts of the country to obtain an abortion.

Do physicians have a duty to respond to this situation? Do they have a professional responsibility to ensure that abortions are reasonably available to the women who want to terminate their pregnancies? Or, is abortion so morally and socially controversial as to remove any professional obligation to provide reasonable access?

Both law and medical ethics have traditionally protected physicians’ freedom to refuse to perform any procedure, including abortion, that conflicts with their religious or other moral beliefs.

Recent court decisions imposing liability on physicians who fail to inform patients that they carry the human immunodeficiency virus (HIV) before performing invasive procedures create an urgent need for the Centers for Disease Control and Prevention (formerly the Centers for Disease Control) to reopen the issuance of guidelines and to address authoritatively the question of the appropriate limits within which HIV-infected health care providers can treat patients.

Public fear of HIV-infected physicians (polls show 80 to 90 percent of patients surveyed want to know if their physicians are HIV-infected) were kindled by reports, beginning in 1990, that Dr. David Acer, an HIV-infected dentist, had infected a number of his patients. However, great skepticism has arisen as to whether Dr. Acer’s patients were infected as a result of procedures conducted in accordance with universal precautions against transmission. Moreover, look back studies have failed to identify even one patient, among the thousands who have undergone procedures administered by HIV-infected physicians, who contracted the virus directly from his/her physician.

On June 20,1991, Dr. Craig Venter, then a molecular biologist at the National Institute of Neurological Disorders and Stroke, a member agency of the National Institutes of Health (NIH), revealed that the NIH was filing an application with the Patent and Trademark Office (PTO) to patent 351 genetic fragments sequenced from brain tissues. The first of many applications filed by the NIH during the next two years, the agency also applied to patent the complete set of genes encompassing each fragment. These applications were filed despite the fact that the full gene sequences, their protein products, and their functions were still unknown (several genetic fragments make up a gene, and these fragments code for protein those products that have physiological functions; an example of such a product is insulin).