What is the value of a human face? It is a vexing question with no simple answer. The question, however, is no longer fanciful given the trajectory of biomedical science that simultaneously captures our imagination and challenges our essence. Essential to each of us and to the whole of humanity, the face is primal in its individuated image and identity. It is intrinsically connected with us in a way that defied question—until now, given the highly anticipated next step in transplant science and technology, facial transplantation. This Article examines the value of the face in this context, along with a range of related issues.

The human face has rich significance. It is intrinsic and instrumental to the ontology of a person. A portal for emotions and expressions, the face reveals an inner-self essential to identity and is inscribed with an inherent dignity of human life.

In December of 2003 the Medicare Modernization Act (MMA) added section 223 to the Internal Revenue Code, creating a federal tax subsidy for money contributed to (and earnings accumulated on) health savings accounts, or HSAs. Though public attention was largely focused at that time on the provisions of the MMA creating the new Medicare prescription drug benefit, the MMA was also a major victory for advocates of “consumer-driven health care” who believe that HSAs have the potential to control the cost and improve the quality of health care in the United States, and perhaps even to increase health care access.

Consumer-driven health care advocates believe that the key reason health care costs are out of control in the United States is that most Americans are too generously insured. They believe the solution is to increase consumer sensitivity to cost and effectiveness by making people spend their own money for health care.

The governance of reproductive science is fraught with controversy in nearly every jurisdiction across the globe. Worldwide, legislators and policy makers have struggled to craft meaningful and ethical parameters for the regulation of this new and evolving area of biotechnology. In most countries, it is agreed that some form of regulatory oversight over reproductive technologies is necessary. There is far less consensus, however, as to the type of regulatory structure that should be established. Recent debates over reproductive science have focused on two of the most controversial practices in this area: embryonic stem cell research and cloning technology. Specifically, interested parties have struggled over whether these practices are so egregious that they should be altogether prohibited, or whether they ought to be permitted, but subject to particular legislative limits and regulatory oversight.

The difficulties that most countries have experienced in devising legislation pertaining to embryonic stem cell and cloning research emanate from the moral ambiguity that characterizes this area of science.

For almost a century, the Food and Drug Administration (FDA) has regulated nutrients and other dietary supplement ingredients and products under the food provisions initially of the Federal Food and Drugs Act of 1906 and now of the Federal Food, Drug and Cosmetic Act of 1938 (“FD&C Act”), as amended. Congress amended the FD&C Act through the Food Additives Amendment of 1958 and the Color Additive Amendments of 1960 to strengthen FDA authority over food ingredient safety. In 1976, Congress enacted the Vitamin-Mineral Amendments which provides that FDA may limit the contents of dietary supplements only for safety reasons. In 1994, Congress enacted the Dietary Supplement Health and Education Act (“DSHEA”) to continue the regulation of dietary supplements under the food provisions of the FD&C Act but to replace the food additive provisions with separate safety requirements for dietary supplements and dietary ingredients.

Scholars of differing political affiliation and the President's Council on Bioethics have called for regulation of assisted reproductive technology (ART) that would emulate many aspects of the regulatory system of the United Kingdom, in particular that of the Human Fertilisation and Embryology Authority. Specifically, scholars and the Council have argued that research in the U.S. involving gametes and human embryos lacks consistent oversight. While the Centers for Disease Control and Prevention (CDC) produces an annual ART success rate report, submission of data is guaranteed only by the promise that non-responders will be noted as such in the appendix of CDC's report, and most ART clinics publish success rates on the Internet in a much more recognized forum: website advertising. Moreover, U.S. law does not require licensing or accreditation of infertility programs and few regulations govern embryo research. While the large majority of clinics report their success rate data, and many follow practice standards and apply for accreditation from private agencies, these practices are strictly voluntary. Clinics failing to report their success rates face no legal consequence.

On January 7, 2003, Sydney Cowan, a healthy six-year-old girl, underwent skin harvesting, specifically to be used for her badly burned identical twin sister, Jennifer. A day earlier, the Probate Court of Jefferson County, Alabama, after considering whether a healthy minor twin sibling could serve as a skin donor for her severely burned sister, authorized parental consent to the surgery. More accurately, the court addressed whether Sydney could undergo surgical procedures that provided her with no physical benefit, but, rather, resulted in harmful effects, such as acute postoperative pain, permanent residua, and potential long-term emotional and psychological dysfunction.

Although the transplants were extraordinarily successful, and the newspaper article depicted Sydney's participation in heroic terms, the harvesting of Sydney's skin was ethically problematic. Specifically, I assert that the use of an incompetent minor as a skin transplant donor, even if an identical twin, is not justified unless the transplant will save the recipient's life.

Since the turn of the century, resourceful entrepreneurs have advertised a wide variety of purportedly simple and painless cures for cancer, including liniments of turpentine, mustard, oil, eggs, and ammonia; peat moss; arrangements of colored floodlamps; pastes made from glycerine and limburger cheese … [T]his historical experience does suggest why Congress could reasonably have determined to protect the terminally ill, no less than other patients, from the vast range of selfstyled panaceas that inventive minds can devise.

[Individuals have] the right to be treated by a health care practitioner with any medical treatment (including a treatment that is not approved, certified, or licensed by the Secretary of Health and Human Services) that such individual desires or the legal representative of such individual desires.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect.

We don't care enough about prisoners’ welfare. We should care deeply because, as two prominent commentators on the history of prisons have said, “Prisoners are ourselves writ large or small. And, as such, they should not be subjected to suffering exceeding fair expiation for the crimes for which they have been convicted.” Well over two million persons are imprisoned in America today. We imprison a higher percentage of our population than any other country. Those we imprison are disproportionately poor, of color, uneducated, and sick. They have chronic conditions, mental illnesses, sexually transmitted diseases and other infectious diseases. They usually receive inadequate health care—and sometimes shockingly poor care.6 It has always been so. Prison reformers have argued for decent prison care based on humanitarian principles since the founding of the Republic, and, notwithstanding some notable achievements, have failed to achieve decent conditions. In the last fifty years, reformers shifted to individual rights arguments based on prisoners’ constitutional rights.

In 1971, New York Times journalist James Reston watched as brain surgery was preformed in the former Red Cross Hospital in Shanghai with acupuncture as the only anesthesia. “[Patients] were anesthetized merely by the insertion of very thin three-inch stainless steel needles into the body … and they were not only perfectly conscious while their skulls were laid open before us but remarkably alert within half an hour after the operation.” One patient, a fifty-four-year-old man named Chuan Leao, had been suffering from epilepsy as a result of a large tumor in the frontal lobe of his brain. “He seemed sensibly puzzled by being introduced to a couple of American strangers during his ordeal but was courteous and patient, and we listened to his comments while the tumor was removed and even watched him eat oranges slices and ask for more while the operation was going on.”

There exists increasing concern that the Dietary Supplements Health and Education Act (“DSHEA”) has proven ineffective and perhaps counterproductive. Most illustratively, consider a recent and remarkably candid remark from Tommy Thompson, then Secretary of Health and Human Services: “I really think Congress should take a look at the food supplement law again. It doesn't make any sense to me.”

A health law that makes no sense to the Secretary of Health of Health and Human Services should certainly draw the attention of academics and policy-makers alike. Much of the debate concerning DSHEA regards the disparity in legislative treatment between dietary supplements, foods, and pharmaceutical drugs. Specifically, while pharmaceutical drugs must undergo years of costly pre-market testing, most dietary supplements—like most foods—can immediately enter the market, and only after repeated instances of adverse reactions can the Food and Drug Administration (“FDA”) remove them.

Consider a mother of two who works full-time as a secretary in order to provide for her family. For several months in early 2000, she had excruciating lower back painthe consequences, she believed, of playing high-school and college fieldhockey. At work, she was unable to stand up from her chair without tremendous pain; at home, she was unable to sleep soundly. After visiting several physicians and undergoing a battery of diagnostic tests, the need for surgery became apparent. She consulted an orthopedic surgeon and was impressed with his qualifications. After informing her employer and seeking the advice of her family and friends, she consented to surgery. What the mother of two did not know, however, was that she had entrusted her life and livelihood to a surgeon who, in the ten years preceding her surgery, had settled twelve medical malpractice claims for an average of just under $300,000 per claim.

In response to the increasing attention to the link between health and nutrition, a wealth of information—and misinformation—is becoming available, especially via the Internet. Consumers are advised to carefully assess the reliability of information they use to determine whether a product is safe. Meanwhile, regulators are sorting out the facts themselves, but despite the ever-increasing availability of scientific research, our evolving understanding of nutrition is still supplemented by our perceptions about risk.

The primary framework for the regulation of dietary supplements is the Dietary Supplement Health and Education Act of 1994 (“DSHEA”). Underlying DSHEA is the congressional intent to support two goals: “(1) to facilitate consumer access to dietary supplements, given that many dietary supplements are used by consumers to help them maintain and improve their health; and (2) to give the Food and Drug Administration (“FDA”) the authority to step in where safety problems arise and to ensure proper labeling.”

Calvin Coolidge had a successful run in politics for over twenty years before ultimately becoming president of the United States in 1923. Throughout Coolidge's first term as president, he worked long, hard hours, was active in Congress, and maintained a strong relationship with the media. This changed, however, during the second term of his presidency. Less than a month after his second-term election, Coolidge's son died of blood poisoning. This traumatic event caused the President to enter into a deep depression. In his autobiography, Coolidge admitted that when his son died, the power and glory of the presidency went with him. His grief, which has since been coined pathological grief, had an effect on the President's mind, body and spirit. President Coolidge lost interest in his job and began sleeping fourteen hours a day, ultimately earning a reputation as one of the most ineffectual presidents ever to hold office. His depression rendered him incapable of making decisions, and as a result most of his duties were delegated to members of his Cabinet. Though the White House knew for four years that Coolidge's depression rendered him incompetent, he remained in office until the end of his second term.

In the ten years since the passage of the Dietary Supplement Health and Education Act of 1994 (“DSHEA”), dietary supplements have become a widely available and important element of individualized preventative healthcare. Congress created DSHEA in response to great consumer demand, thereby embracing the dietary supplement category and opening the door for the growth of the dietary supplement industry. DSHEA introduced an expansive definition of dietary supplements and laid out available claims and strict safety standards for such products.

While the statute has remained unchanged since its passage in 1994, the Food and Drug Administration (“FDA”) appears to be in the process of re-interpreting sections of DSHEA in ways that could fundamentally limit the availability of dietary supplements. Specifically, FDA has been utilizing DSHEA's “new dietary ingredient” (“NDI”) safety provision to narrow the scope of ingredients that can be considered, even before addressing their safety, for use in dietary supplements.

Scientific studies continue to establish a strong relationship between constituents in foods and dietary supplements and certain diseases. The general population is inundated on a seemingly daily basis by media reports of new studies showing that a food or dietary supplement is useful in treating particular diseases or reducing the likelihood that a consumer will develop particular diseases. With increasing frequency, consumers are looking for foods and supplements to help manage and prevent the onset of disease.

Not surprisingly, the food and dietary supplement industries are responding by developing new products and repositioning old products efforts to help consumers manage their health. For example, yogurt used to be positioned only as a delicious component of a meal but now is also promoted for use in weight loss programs after a study showed that the calcium in dairy products is effective in weight loss.