About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 Health Matrix 5 (1991)
Do We Own Our Bodies?

handle is hein.journals/hmax1 and id is 11 raw text is: DO WE OWN OUR BODIES? Guido Calabresit This article was based on a lecture Dean Calabresi gave as the Schroeder Scholar-in- Residence at Case Western Reserve University. The Schroeder Scholar-in-Residence program honors the founder of the Case Western Reserve University Law-Medicine Center, Professor Emeritus Oliver C. Schroeder, Jr., by bringing to the law school each year a distinguished scholar who conducts faculty workshops, meets with stu- dents, and delivers a formal public address, known as the Schroeder Lecture. D°WE OWN our own bodies? That seems like a silly question. Of course we do. But do we? Not long ago in Pennsylvania there was a case in which a man needed a bone marrow transplant or he would die.1 The only person who had suitable bone marrow was his cousin. His cousin had nothing against McFall, the person who needed the marrow. In fact, he liked him. But he was scared. He was scared because although the operation to obtain the bone marrow was not life threatening, it was quite painful. He refused to donate the marrow, and McFall did what any red-blooded Ameri- can would do-he went to court. He sued for an injunction to or- der his cousin to give him the bone marrow.' The court denied the injunction, stating that the precedents did not authorize it, as an equity court, to order the injunction. The court expressly made no comment on what would happen if the dying man sought damages from his cousin for failing to agree to the transplant. Nor, despite some very purple language indicating deep revulsion,3 did the court decide the constitutionality of a law t Dean and Sterling Professor of Law, Yale University. I am extremely grateful to the editors of Health Matrix for their assistance in converting this lecture into article form. 1. McFall v. Shimp, 10 Pa. D. & C. 3d 90 (1978). 2. McFall did not offer to compensate his cousin for undergoing the procedure and giving him the bone marrow. The court could, however, have required such compensation, as it has done in some nuisance cases, in which an injunction was issued against the nui- sance, but the plaintiff was required to pay damages to the defendant, nuisancor to com- pensate it for having to cease its activity. See, Spur Industries v. Del E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700 (1972). 3. For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from its sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissue causes revulsion to the judicial mind. Such would raise the spectra of the swas- tika and the Inquisition, reminiscent of the horrors this portends. McFall v. Shimp, 10 Pa. D. & C. 3d 90, 92 (1978).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most