ORGAN HARVESTS FROM THE LEGALLY INCOMPETENT: AN ARGUMENT AGAINST COMPELLED ALTRUISM

1 See, e.g., B.D. Colen, Whatever Happened to Baby Jane Doe? And Other Cases Involving Reproductive Ethics, in Hastings Center Report 2 (1994).
2 See Deane L. Wolcott et al., Psychiatric Aspects of Bone Marrow Transplantation: A Review and Current Issues, 4 Psychiatric Med. 299, 299 (1987) [hereinafter BMT Review].
3 See Hal Daniel Friedman, The Greatest Gift, But At What Cost?—Objections to Court-Compelled Organ Donation In Aid of a Family Member, 30 J. Fam. L. 605, 620 (1991–92) [hereinafter Greatest Gift]; infra notes 98–110 and accompanying text.
4 See Daniel B. Griffith, The Best Interest Standard: A Comparison of the State’s Parens Patria Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients, 7 Issues L. & Med. 283, 308 (1991) (stating: “A person cannot make an informed decision if she lacks the capacity to reason and make judgments, her decision is not voluntary, and she lacks a clear understanding of the risks and benefits of alternatives as well as the nature and prognosis of the disease”).
5 See id.
6 Physicians may treat children without parental consent if there is a risk to life or limb. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18, at 117 & n.37 (5th ed. 1984). Furthermore, the state’s interest in protecting the public health and welfare may override the need for parental consent. See, e.g., Jacobsen v. Massachusetts, 197 U.S. 11, 30 (1905) (upholding constitutionality of compulsory vaccines).
7 See Little v. Little, 576 S.W.2d 493, 495 (Tex. App. 1979, writ denied); Griffith, supra note 4, at 308; cf. Bach v. Long Island Jewish Hosp., 267 N.Y.S.2d 289, 290–91 (N.Y. Sup. Ct. 1966) (holding that the consent of a minor emancipated by marriage was sufficient to authorize medically unnecessary treatment).
8 See Charles H. Baron, Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U. L. Rev. 159, 165 (1975). Although the parental right to direct a child’s upbringing has been recognized as a fundamental right, the state may, under its parens patria power, burden that right or terminate parental rights altogether. See, e.g., In re Tabatha R. v. Ronda R., 587 N.W.2d 109, 115, 119 (Neb. 1998) (upholding an order removing a child from the care of the parents when one parent was incarcerated and the other was in an institution for the criminally insane). See also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (overriding guardian’s decisions regarding a minor’s religious upbringing); Sherr v. Northport, 672 F. Supp. 81, 96 (E.D.N.Y. 1987) (overriding parents’ objections to compulsory immunizations for their school-age child).
9 See William J. Curran, A Problem of Consent: Kidney Transplantation in Minors, 34 N.Y.U. L. Rev. 891, 892 (1959).
10 See Hart v. Brown, 289 A.2d 386, 387 (Conn. Super. Ct. 1972) (physician and hospital refused to transplant a kidney from a seven year-old to her twin sister without a court order declaring that the parents had the right to consent on the child donor’s behalf); Curran, supra note 9, at 892; Jennifer K. Robbennolt et al., Advancing the Rights of Children and Adolescents to be Altruistic: Bone Marrow Donation by Minors, 9 J.L. & Health 213, 216–17 (1994–95).
11 See Joel D. Kallich & Jon F. Merz, The Transplant Imperative: Protecting Living Donors from the Pressure to Donate, 20 J. Corp. L. 139, 143 (1995) (stating that “[u]nlike medical care provided to improve the health of a patient, organ donation provides no therapeutic benefit to the organ donor”); Good Samaritan Hosp. v. Ohio Dept. of Health, 642 N.E.2d 1160, 1162 n.2 (Ohio Ct. App. 1994) (noting that “bone marrow is an organ”). This Note only specifically addresses bone marrow and kidney harvests, but the argument applies to other organ harvests as well.
12 See Curran, supra note 9, at 892.
13 See Little, 576 S.W.2d at 499; Janet L. Dolgin, The Fate of Childhood: Legal Models of Children and the Parent-Child Relationship, 61 Alb. L. Rev. 345, 393 (1997); cf. Curran v. Bosze, 566 N.E.2d 1319, 1344–45 (Ill. 1990).
14 See Little, 576 S.W.2d at 497 (citing John A. Robertson, Organ Donation by Incompetents and the Substituted Judgment Doctrine, 76 Colum. L. Rev. 48, 53 (1976)) (stating: “Judicial approval for intra-family transplants from incompetent donors has been granted in most cases.”).
15 See generally McFall v. Shimp, 10 Pa. D. & C.3d 90 (1978) (refusing to compel a competent adult to undergo a bone marrow transplant for the benefit of his cousin).
16See Roberta G. Simmons et al., Gift Of Life: The Social And Psychological Impact Of Organ Transplantation 289 (1977) [hereinafter Gift of Life] (noting the case of a daughter who backed out the night before she was to donate a kidney to her mother). See generally Lanie Friedman Ross et al., Ethics of a Paired-Kidney-Exchange Program, 337 New Eng. J. Med. 1392, (1997), available at <http://www.nejm.org/content/1997/ 0336/0024/1752.asp>. Friedman Ross et al. advocate a kidney exchange program that addresses the problem of adult donors withdrawing their consent at the last minute. Under this model, an individual who is willing to donate a kidney but who is a poor tissue match for his or her ill recipient would be paired with a second mismatched pair and the kidneys would essentially be bartered between them: willing Donor A would provide a kidney to Recipient B, and willing Donor B would provide a kidney to Recipient A. The proponents warn, however, that the transplants would have to take place simultaneously to eliminate the possibility that Donor B might withdraw her consent after Donor A had already undergone surgery. See id.
17 See, e.g., Head v. Colloton, 331 N.W.2d 870, 876 (Iowa 1983) (refusing to disclose identity of a potential bone marrow donor in a hospital donor registry to an individual suffering from leukemia); McFall, 10 Pa. D. & C.3d at 91; see also Greatest Gift, supra note 3, at 620 (arguing that even in the limited contexts in which states have found a duty to rescue, no legislature has gone so far as to require that the rescuer put him or herself at risk). But see Fordham E. Huffman, Comment, Coerced Donation of Body Tissue: Can We Live with McFall v. Shimp? 40 Ohio St. L.J. 409, 414–22 (1979) (articulating four criteria which, if satisfied, would permit a patient to obtain a court order requiring an unwilling donor to undergo an organ harvest under threat of civil and criminal penalties).
18 See Aaron Spitall, Mandated Choice for Organ Donation: Time to Give it a Try, 125 Annals Internal Med. 66 (1996), available at <http://www.acponline. org./journals/ annals/>, under Past Issues (noting that a Gallup poll confirmed the general sense that the individual, not the family, should make the decision about post-mortem organ donations, and further, that the family should not be able to override advance directives); cf. Perry v. Saint Francis Hosp. & Med. Ctr., 886 F. Supp. 1551, 1561–62 (D. Kan. 1995) (finding that the use of deception to obtain a family’s consent to extensive post-mortem donation was sufficiently outrageous to support a claim for intentional infliction of emotional distress).
19 See generally Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990) (O’Connor, J., concurring) (noting that it may be necessary for states to adopt special procedures in order to protect the liberty interests of incompetent patients); Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977) (holding that it is the manner in which the state preserves and upholds the rights, rather than the substance of those rights, that distinguishes an incompetent from a competent individual).
20 See 29 C.F.R. § 570.2 (1998) (child labor regulations); Restatement (Second) of Contracts § 12(2)(b), (c) (1979).
21 See Saikewicz, 370 N.E.2d at 428 (stating: “The ‘best interests’ of an incompetent person are not necessarily served by imposing on such persons results not mandated as to competent persons similarly situated. . . . To protect the incompetent person within its power, the State must recognize the dignity and worth of such a person and afford to that person the same panoply of rights and choices it recognizes in competent persons.”).
22See Strunk v. Strunk, 445 S.W.2d 145, 146 (Ky. 1969); McFall, 10 Pa. D. & C.3d at 91; Louise Harmon, Falling Off The Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 Yale L.J. 1, 57 (1990) (tracing the history of the “legal fiction” and noting that its development in the “law of lunacy” permitted judges to be less protective of the property and bodies of incompetents without changing the underlying laws which so fiercely protected the property and bodies of competent individuals).
23 See infra notes 327–43 and accompanying text.
24 See Curran, 566 N.E.2d at 1344–45. See generally Strunk, 445 S.W.2d at 145; In re Doe, 481 N.Y.S.2d 932 (N.Y. App. Div. 1984) (per curiam).
25 See Curran, 566 N.E.2d at 1344–45. See generally Strunk, 445 S.W.2d 145; Doe, 481 N.Y.S.2d 932.
26 See McFall, 10 Pa. D. & C.3d at 91; infra notes 197–213 and accompanying text.
27 See infra notes 236–73 and accompanying text.
28 See infra notes 233–69 and accompanying text.
29 See infra notes 253–69 and accompanying text. See generally Dolgin, supra note 13 (arguing that children suffer from the loss of childhood when shouldered with the burdens and privileges of adulthood).
30 Cf. Kallich & Merz, supra note 11, at 150 (noting that prisoners are not permitted to donate organs because of the potential for coercion and abuse). See generally Carl H. Fellner & John R. Marshall, Kidney Donors—The Myth of Informed Consent, 126 Am. J. Psychiatry 1245 (1970).
31 See generally Strunk, 445 S.W.2d 145; Doe, 481 N.Y.S.2d 932; Little, 576 S.W.2d 493.
32 See Ferrell v. Rosenbaum, 691 A.2d 641, 646 (D.C. 1997), discussed infra notes 215–31 and accompanying text.
33 There is a 25% chance that a sibling will be a bone marrow match. See Ferrell v. Rosenbaum, 691 A.2d 641, 652 (D.C. 1997). Bone marrow transplants are used to treat aplastic anemia and some forms of leukemia and severe immunodeficiency diseases, although the therapy may offer no long-term advantages over conventional chemotherapy for patients with leukemia. See BMT Review, supra note 2, at 299. In 1984, approximately 450 bone marrow transplants were performed on children. See Deane L. Wolcott et al., Psychological Adjustment of Adult Bone Marrow Transplant Donors Whose Recipient Survives, 41 Transplantation 484, 484 (1986) [hereinafter BMT Donors]. In 1997, the number was up to 2000. See Corinna Kaarela, After a Child Donates Bone Marrow to a Sibling, Self-Esteem Often Fares Worse Than That of Non-Donor Brothers and Sisters, UCSF Press Release, Aug. 8, 1997, (visited Jan. 9, 2000) <http://www.ucsf.edu/pressrel/pr0897/0808bone.html>.
34 See John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies 213–14 (1994) [hereinafter Children of Choice]; Gina Kolata, Birth to Save Sibling Spurs Ethics Debate, Chi. Trib., June 4, 1991, at A1; Marissa Ayala: Bonded by Bone Marrow, Two Sisters Live Happily Ever After, People, Mar. 15–22, 1999, at 78. [hereinafter Marissa Ayala].
35 See McFall v. Shimp, 10 Pa. D. & C.3d 90, 91 (1978); see also Head v. Colloton, 331 N.W.2d 870, 872–73 (Iowa 1983) (refusing to disclose the identity of a matched donor who refused to donate bone marrow, despite the petitioner’s grave medical condition); In re George, 630 S.W.2d 614, 622 (Mo. Ct. App. 1982) (refusing to open adoption records for an individual in need of a bone marrow transplant). But see Huffman, supra note 17, at 414–15 (suggesting a “construct” by which plaintiffs who satisfy certain criteria may obtain a court order and compel a reluctant donor to cooperate under threat of civil and criminal penalties).
36 See Hart v. Brown, 289 A.2d 386, 387 (Conn. Super. Ct. 1972) (regarding kidney harvest from seven year-old twin); In re Doe, 481 N.Y.S.2d 932, 933 (N.Y. App. Div. 1984) (per curiam) (regarding bone marrow harvest from mentally retarded adult); Little v. Little, 576 S.W.2d 493, 497 (Tex. App. 1979, writ denied) (regarding kidney harvest from young girl with Down’s Syndrome).
37 See Rachel M. Dufault, Bone Marrow Donations by Children: Rethinking the Legal Framework in Light of Curran v. Bosze, 24 Conn. L. Rev. 211, 230 (1991); Robbennolt, supra note 10, at 214.
38 See Dufault, supra note 37, at 230; Robbennolt, supra note 10, at 214.
39 See generally Baron, supra note 8; Robertson, supra note 14.
40 See infra notes 43–58 and accompanying text.
41 See infra notes 59–94 and accompanying text.
42 See infra notes 98–126 and accompanying text.
43 See BMT Review, supra note 2, at 300. After undergoing tissue typing, a bone marrow harvest must be done under general anesthesia so the marrow can be extracted via multiple punctures in the pelvic area with a rigid needle screwed through the bone. See id. It takes approximately half an hour and upwards of 200 taps to extract one liter of bone marrow fluid from an adult; the procedure must be repeated at various intervals to extract sufficient bone marrow fluid from a child. See Baron, supra note 8, at 163 n.20; Diane M. Gianelli, Bearing a Donor? Ethical Concerns Raised Over Having Baby for Marrow Match, Am. Med. News 3, available in 1990 WL 3259464. Although the greatest physical risk is from the anesthesia, infection is also a concern. See Gianelli, supra; Celia Hall, Donor’s Operation Carries Little Risk, Daily Telegraph, Apr. 19, 1997, at 3.
Renal transplants are significantly more involved. Donors tend to experience a great deal of pain and discomfort post-transplant and there is a 28.2% risk of complications, ranging from mild infections and lung problems to extreme cases in which the donor contracts the same illness which afflicted the recipient. See Gift of Life, supra note 16, at 166. Major complications include damage to the spleen or adrenal glands, major bleeding and pulmonary embolisms. See Kallich & Merz, supra note 11, at 147. In addition, both donors and recipients have a permanent scar running from mid-abdomen to mid-back. See Gift of Life, supra note 16, at 166.
44 See BMT Donors, supra note 33, at 484–85, 487.
45 See id.
46 See id.
47 See, e.g., Richard L. Faber, Twenty-Five Years on Dialysis, in The Kidney Patient Handbook ch. 6-b, (Richard L. Faber & Stephen W. Wilde eds., 4th ed. 1993) available at <http://www.ultranet.com/~ktda/>. Faber’s essay, begun in 1972, recounts his twenty-five year experience with dialysis treatment, his return to normal functioning and the ongoing health problems caused by his underlying kidney disease. See generally id.
48 See id.
49 Between 1990 and 1995 the number of cadaveric kidneys available in the United States rose from 9878 to 11,818, a small but not insignificant increase. See Laura G. Dooley & Robert S. Gaston, Stumbling Toward Equity: The Role of Government in Kidney Transplantation, 1998 U. Ill. L. Rev. 703, 721 n.98. But see Kallich & Merz, supra note 11, at 142–43 (noting that the low rate of increase in the number of available cadaveric kidneys can likely be traced to a decrease in the number of automobile fatalities and an increase in diseases such as HIV that preclude transplantation). Authors Kallich & Merz conclude that the pressures on living donors will increase as the supply of cadaveric organs becomes insufficient to meet the demand. See id.
50See Jeff Punch, Spouses as Kidney Donors: Recent Findings and Statistics, (visited Jan. 9, 2000) <http://www.transweb.org/qa/asktw/answers/answers9507/Spousalkidneydonors. html>. The life expectancy for recipients of kidneys from emotionally related donors closely approximates the life expectancy for recipients of parent or cadaver kidneys. See id.
51 See id. In particular, the introduction of the immunosuppressive Cyclosporine can be credited with widening the set of kidney donors. See id.; Kallich & Merz, supra note 11, at 140–41. But see Hart, 289 A.2d at 389 (listing the serious and permanent side-effects associated with immunosupressives).
52 BMT Donors, supra note 33, at 484–85. This is not to suggest that these options are optimal. Dialysis is a demanding treatment and patients often find the treatment and its strict regimen of food, medication and exercise physically and emotionally draining. See generally Psychonephrology I: Psychological Factors in Hemodialysis and Transplantation (Norman B. Levy ed., 1981) [hereinafter Psychonephrology].
53 See BMT Review, supra note 2, at 299. The efficacy of the treatment depends on the underlying disease. See id. While a bone marrow transplant may be the optimal treatment for some individuals with aplastic anemia, leukemia patients may fare no better from a bone marrow transplant than from the regular course of chemotherapy. See id. Advances in medical science may eventually provide alternatives to current practices. For example, transplants between individuals who are not closely matched may become more feasible, umbilical cord blood may provide a source of bone marrow, and cloning whole organs may become possible. See, e.g., Andrew Skolnick, Application Considered for Immunotoxin in Treatment of Graft-vs-Host Disease, 265 JAMA 2041, 2042 (1991) (stating that new drug shows promise in reducing graft-versus-host disease (GVHD) for patients receiving bone marrow transplants from their parents); Richard Saltus, Report Offers Vision of Versatile Fix-it Cell, Boston Globe, Nov. 6, 1998, at A3 (reporting that scientists isolate human cells with the potential to develop into any kind of cell in the human body, and that “stem cells,” which are only present “in the first few days of embryonic life,” can reproduce in a petri dish). Autologous transplants, the removal (prior to chemotherapy) and subsequent reinfusion (after chemotherapy) of the patient’s own bone marrow are being used for certain types of cancers, but other types continue to require allogenic transplants, that is, bone marrow from a donor. See Dexter v. Kirschner, 984 F.2d 979, 981, 987 (9th Cir. 1992) (rejecting claim that under the Equal Protection Clause of the Fourteenth Amendment the state Medicaid system was required to fund both allogenic and autologous bone marrow transplants).
54 See Baron, supra note 8, at 182 (noting that the urgency of the situation results in the adult donor being pressured to make an immediate decision while for the incompetent donor, the situation results in a rushed legal proceeding in which the donor’s interests go unprotected). But cf. Doe, 481 N.Y.S.2d at 932–33 (granting petition to harvest bone marrow from severely retarded adult notwithstanding the fact that the life of the ill sibling, also an adult, was not in immediate jeopardy).
55 See BMT Donors, supra note 33, at 484–85.
56 See Baron, supra note 8, at 181–88. Professor Baron notes that many guardians ad litem assigned by Massachusetts courts to represent the volunteered donors were actually doctors who worked for the hospitals at which the transplants were to be performed. See id. at 184. In addition to concerns about conflicts of interest, doctors may be better equipped to be information resources than vigorous advocates for the interests of young or incompetent donors. See id.
57 See id. at 163 n.19; Deane L. Wolcott et al., Adaptation of Adult Bone Marrow Transplant Recipient Long-Term Survivors, 41 Transplantation 478, 484–85 (1986) [hereinafter BMT Recipients]; see also Newmark v. Williams, 588 A.2d 1108, 1117–18 (Del. 1990) (upholding parents’ right to refuse aggressive cancer treatment for their young son). In Newmark, the court found that the treatment was “the most aggressive form of cancer therapy short of a bone marrow transplant.” Id. at 1118. If the treatment itself did not kill the boy, it would offer him a forty-percent chance of survival, measured not in terms of cure, but in terms of living for two additional years, cancer free. See id. at 1119 n.12.
58 See generally BMT Donors, supra note 33.
59 See, e.g., Hart, 289 A.2d at 389; Doe, 481 N.Y.S.2d at 933; Little, 576 S.W.2d at 499; cf. Curran v. Bosze, 566 N.E.2d 1319, 1343–44 (Ill. 1990) (refusing to authorize a bone marrow transplant where the sibling relationship was too tenuous to support a finding of psychological benefit).
60 See Hart, 289 A.2d at 389; Doe, 481 N.Y.S.2d at 933; Little, 576 S.W.2d at 499; cf. Curran, 566 N.E.2d at 1343–44.
61 See BMT Donors, supra note 33, at 487.
62 See id. at 485. Wolcott et al. noted that little attention has been paid to the long-term psychological adjustment of bone marrow donors because, overall, kidney donors seem to adjust quite well. In other words, researchers have wrongly assumed that the experience of one set of donors can accurately predict the experience of another set of donors. See id. at 484; BMT Recipients, supra note 57, at 478.
63 See BMT Donors, supra note 33, at 487. See generally Roberta Simmons, Psychological Reactions to Gift Giving, in Psychonephrology, supra note 52, at 227.
64 See Marissa Ayala, supra note 34, at 78.
65 See BMT Donors, supra note 33, at 487; Simmons, supra note 63, at 234.
66 See generally BMT Donors, supra note 33; BMT Recipients, supra note 57; BMT Review, supra note 2.
67 See BMT Donors, supra note 33, at 487. In addition, the passage of time post-transplant did not diminish the correlation between the recipient’s wellness and the donor-recipient relationship. See id. A sister who donated a kidney to her brother reported that he had been avoiding her for three months following the operation. “I was never so crushed. I would call him up and he would be as cold as ice. I was destroyed. To this day I don’t mention the kidney in front of him. . . . He has never come out and said ‘Thank you.’” Simmons, supra note 63, at 234.
68 BMT Donors, supra note 33, at 487.
69 See id.; see also R. v. Cambridge Health Auth., 2 All E.R. 129, 133–35 (C.A. 1995) (upholding the Health Authority’s refusal to fund a second bone marrow transplant where the treatment would only yield a 10% chance of survival if the treatment itself did not kill her); BMT Recipients, supra note 57, at 478, 480, 482.
70 See BMT Recipients, supra note 57, at 478. Statistics can, of course, mean different things to different people, numbers which give a donor pause might well give a recipient hope. But lest the reader lose sight, the question is not whether a recipient may benefit from the transplant but whether the benefits courts impute to organ donors are likely to be realized.
71 See Ronald Kline, New Marrow for Old, MIT Alumni Tech. Rev., Nov. 1993, at 43.
72 See id.
73 Id.
74 See id.
75 See BMT Review, supra note 2, at 305–06. Post-bone marrow transplant delirium led, in at least one reported case, to stupor and coma. See id.
76 See id. at 305. Severe cognitive impairment and altered interpersonal behavior were observed in a small percentage of patients at the UCLA clinic where the transplants and subsequent studies were performed. See id.
77 See generally Kline, supra note 71.
78 See Kaarela, supra note 33.
79 See id.; Philip Cohen, Donor’s Dread: Why do Children Who Help a Sick Sibling End Up Depressed?, 155 New Scientist 20, 20 (1997).
80 See Cohen, supra note 79, at 20; Kaarela, supra note 33.
81 See Cohen, supra note 79, at 20; Kaarela, supra note 33. It should not come as a surprise that all of the siblings showed signs of trauma, regardless of whether they were selected to donate. Proponents of organ harvests from minors might use this fact to argue that because the whole family unit is traumatized by the illness visited on one of its members, the situation for the young donor is not made worse by his participation in the organ harvest. The UCSF study did not, however, control for the accumulated effects of the non-donors being eliminated from the harvesting procedure. It is very possible, therefore, that the trauma non-donors experience is as much a result of the donor selection process as it is a result of the illness itself. For example, the non-donor’s trauma might be a consequence of the child’s fear and worry of possibly being chosen and the guilt that attends his feelings of relief for having escaped selection. Additionally, the child may experience conflicted feelings of jealousy regarding the attention and praise the donor sibling receives and confusion about how to understand all of these feelings in the face of his sister or brother’s struggle to live. See, e.g., Roger Dobson, Your Sister Could Save Your Life. Luckily She Wants To, Indep. (London), May 14, 1996, at 6.
Furthermore, the study may support an argument that the emotional cost of extraordinary medical treatments on individual family members and the family unit as a whole may, in some cases, outweigh the remote chance of a cure for the ill child. See generally George Howe Colt & Eugene Richards, The American Family: Part Five; When a Child is Sick, Life, Aug. 1991, at 58 (reporting one family’s experience with childhood leukemia and noting that the healthy sibling was withdrawn, angry and resentful, the father developed heart problems as a result of the stress and the mother, who worked two and sometimes three jobs to support the family, came home each night ragged and worn out).
82 See Cohen, supra note 79, at 20.
83 Warren Kearney & Arthur L. Caplan, Parity for the Donation of Bone Marrow: Ethical and Policy Considerations, in 1 Emerging Issues in Biomedical Policy: An Annual Review 262, 275 (Robert H. Blank & Andrea L. Bonnicksen eds., 1992).
84 See Gift of Life, supra note 16, at 154, 169; Kallich & Merz, supra note 11, at 148 n.30.
85 See supra note 62 and accompanying text; see also BMT Donors, supra note 33, at 487.
86 See BMT Donors, supra note 33, at 487; see also Gift of Life, supra note 16, at 171–75. One author has noted that “[t]he donor who demonstrates clear ambivalence prior to donation is likely to find the recipient reacting with hostility rather than gratitude for the gift. The reluctant gift may be accepted, but the donor loses more than the gift in the exchange.” Gift of Life, supra note 16, at 175.
87 See BMT Donors, supra note 33, at 487.
88 See id. at 488.
89 See generally Psychonephrology, supra note 52.
90 See Pietro Castelnuovo-Tedesco, Transplantation: Psychological Implications of Changes in Body Image, in Psychonephrology, supra note 52, at 219, 222; Jorge Steinberg et al., Psychological Factors Affecting Acceptance or Rejection of Kidney Transplants, in Psychonephrology, supra note 52, at 185, 189.
91 See Castelnuovo-Tedesco, supra note 90, at 220–21. One researcher hypothesized that these psychological effects were peculiar to treatments which effectively extend rather than save a patient’s life. See id. In other words, individuals who are treated by having diseased tissue or organ surgically removed are more likely to see their treatment as reclaiming their proper life span than are those whose treatment involves the receipt of another’s tissue or organ. That no psychosis or delusions were reported among recipients of life-saving treatments is evidence for the researcher’s hypothesis. See id.
92 See id.; Gift of Life, supra note 16, at 171–72.
93 See Gift of Life, supra note 16, at 166.
94 See id. at 169. In one study, the rejection rate for kidneys was 18% and a number of donors exhibited or reported having severe negative reactions to the news. See id. One brother who donated reported becoming hysterical when he found out that his kidney had been rejected, exclaiming: “What a waste for me and what a horrible thing for him.” Id.
95 See supra notes 43–58 and accompanying text.
96 See infra notes 99–126 and accompanying text.
97 See infra notes 99–126 and accompanying text.
98 See generally Mark F. Anderson, Encouraging Bone Marrow Transplants From Unrelated Donors: Some Proposed Solutions to a Pressing Social Problem, 54 U. Pitt. L. Rev. 477 (1993); Kallich & Merz, supra note 11.
99 See Gift of Life, supra note 16, at 165; Anderson, supra note 98, at 530 (noting that the donor who is “forced to undergo an operation that exposes her to a small but significant health risk as well as physical discomfort for several days . . . will likely suffer serious psychological trauma. . .”).
100 See Gift of Life, supra note 16, at 233–71; Anderson, supra note 98, at 487–88; Fellner & Marshall, supra note 30, at 1250.
101 See generally Robert W. Griner, Note & Comment, Live Organ Donations Between Siblings and the Best Interest Standard, 10 Ga. St. U. L. Rev. 589, 602–08 (1994).
102 See Anderson, supra note 98, at 529. Additionally, an individual’s willingness to donate at all may depend on the voluntariness of the donation process. Charitable organizations that attempt to coerce participation by pressuring volunteers or making them feel guilty, for example, are likely to see a reduction in their contributions. See Alan Radley & Marie Kennedy, Charitable Giving by Individuals: A Study of Attitudes and Practices, 48 Hum. Rel. 685 (1995) (noting that when people experience charitable solicitations as intrusive, refusing to give becomes “an exercise of one’s rights as a private citizen” rather than a “breach of a social norm”).
103 See Head, 331 N.W.2d at 872 (refusing to disclose identity of a potential bone marrow donor in a hospital donor registry to an individual suffering from leukemia). Although participants in bone marrow registries remain anonymous, if their bone marrow is used and the recipient survives the first year post-transplant, the donor and recipient’s identities may be disclosed with both parties’ consent. In some cases, a lasting relationship may develop between the formerly anonymous donor and the recipient of the tissue. The author of this Note had the opportunity to speak with one such donor about his experience. Mr. Nicholas Economou participated in a local bone marrow registry near his home in Virginia. His bone marrow ultimately went to a five year-old girl, Carly Scherer of Buffalo, New York, who was suffering from a rare form of leukemia. The transplant was performed in June 1995, Mr. Economou and Carly met in June 1996. Though separated by thousands of miles, the two families have since become very close. Carly will be declared cured in May 2000, an event in which both families will share. See Telephone Interviews with Nicholas Economou, November 1999-January 2000; see also Louise Continelli, Girl Earns Place Among Young Cancer Survivors, Buffalo News, Feb. 9, 2000, at 5B.
104 See Officer Is One In a Million, Herald (Glasgow), Sept. 17 1998, at 12 (recounting the experience of a Scottish police officer whose participation in the UK bone marrow registry led to him becoming a donor). One donor has noted: “What could be more worthwhile than offering somebody the chance of life—it really is an amazing feeling.” Id.
105 See id. Moreover, the fact that such stories receive this type of media attention and public commendation indicates that these acts of altruism are considered acts of heroism.
106 See Gift of Life, supra note 16, at 233–50; Simmons, supra note 63, at 230. Family members who donate also make up a third, middle group. This group arrives at the decision to donate after more deliberation than those who feel morally obligated. See Gift of Life, supra note 16, at 254–58. At the same time, for these donors family pressure plays an identifiable, albeit a less coercive and corrosive, role. See id. at 257–58. For purposes of this analysis, the more extreme types of decision-making capture the key components of the more mediated decision-making process.
107 See Gift of Life, supra note 16, at 165, 285.
108 See id. at 238, 239–50.
109 See id.
110 See id. at 165.
111 See Kallich & Merz, supra note 11, at 144 (pressure from medical personnel); Gift of Life, supra note 16, at 154–65 (family pressure).
112 See Gift of Life, supra note 16, at 165 (noting that 12% of the case studies involved “blatant unwelcome types of family pressure”).
113 See generally, e.g., Lawse v. University of Iowa Hosps., 434 N.W.2d 895 (Iowa Ct. App. 1988). In one case, a living kidney donor brought an action against the hospital and doctors for wrongful removal of his kidney. See id. at 896. Thirteen years after he donated a kidney to his brother, the donor’s remaining kidney failed. See id. at 898. The donor claimed that because the hospital and staff had negligently failed to respond to his unwillingness to donate, his consent had been coerced. See id. The donor specifically alleged that the doctor and hospital had coerced him by giving him misinformation or insufficient information: (1) despite the fact that his brother was doing well on dialysis, he had been told that his brother would die without his kidney; (2) he was counseled that “there was basically no risk to him, it was like having an appendix removed” and (3) information about his tissue typing had been shared with other family members before he had been informed of the results—information that could not help but affect those members’ willingness to donate. At the same time, information about another brother’s refusal to donate was kept from him. See id. at 897. The court frankly discussed the coercive effect of family pressure and aired the concern that as a result, related donors may never be able to give a truly informed consent. See id. The case was dismissed, however, because the statute of limitations had run out. See id. at 898.
114 See Gift of Life, supra note 16, at 160–61. Fifty-four percent of the donors in the study group were subject to such “compulsory” pressures. See id. at 161.
115 See Kallich & Merz, supra note 11, at 144–46. One author has noted: “The social mores of the family [may] dictate that all members . . . offer to donate their organs. . . . Violating this norm entails substantial and likely penalties that few would endure willingly, such as excommunication from the entire family unit.” Id. at 146. One mother spoke about the pressure on her ten-year-old daughter to donate:

In a way, I suppose, she didn’t really have a choice. We simply told her the facts. We didn’t say, “Look if you don’t do it, Lewis will die,” because that would have been too much, but she knew as much. At the end of the day a parent isn’t going to say, “The choice is yours. If you decide not to, that’s fine, we’ll just prepare for our son’s funeral.” If she had had very strong views against being a donor, I don’t know what we would have done.

Dobson, supra note 81. In fact, the ten year-old daughter had hoped she would not turn out to be a match and spoke of her fear of hospitals and needles. See id. None of this, however, amounted to the daughter holding “strong views” in the mother’s eyes. See id.
116 See Baron, supra note 8, at 173; Fellner & Marshall, supra note 30, at 1248.
117 See BMT Donors, supra note 33, at 487. “[O]ne mother remarked openly to [the transplant team] . . . ‘Isn’t it strange that it ends up our [son, the] black sheep . . . is the donor to our favorite [daughter].’” See id. This comment led to staff aptly to ask, “What will these parents do to this donor son psychologically if she dies?” See id.
118 See id.; see also Baron, supra note 8, at 173 (noting the danger that parents will be “particularly insensitive” to the harms a “disfavored donor” might suffer or “particularly impressed” with the benefits a “favored recipient” might receive).
119 See Gift of Life, supra note 16, at 445; see also Castelnuovo-Tedesco, supra note 90, at 222–23 (reporting the case of a boy who made a suicidal gesture, rejected the grafted kidney and died after discovering that the kidney had been donated by his “ne’er do well” father); Steinberg, supra note 90, at 189. Steinberg attempted to predict the acceptance or rejection of transplanted kidneys on psychological factors alone. See id. at 186–87. Of the twenty-six recipients in the study, only one was rated as “unlikely” to retain the transplanted kidney. See id. at 188–89. In that case, a forty-eight year-old aunt agreed to donate a kidney to her ill and estranged twenty-six year-old niece. See id. The family urged the aunt to be the donor because of their belief that the operation would reunite the two women. See id. Notwithstanding her aunt’s willingness to donate, however, the niece maintained her distance. See id. This reaction angered the aunt, and prompted the aunt to tell her niece to “[t]ake my fucking kidney. . . [,] I don’t want to see you again.” See Steinberg, supra note 90, at 189. As predicted, the aunt’s kidney was rejected shortly after the transplant. See id.
120 See Simmons, supra note 63, at 228 (forty-three percent of family members declined to be tested for initial compatibility); see also Friedman Ross, supra note 16 (expressing the concern that an organ exchange program which effectively eliminates the “incompatible donor” excuse may be problematic for those donors who count on being able to express their show of support for the family member without being under any obligation to donate).
121 See Gift of Life, supra note 16, at 203–04. The percentages of family members who donated or volunteered to donate were: parents (86%); adult children (66%); sisters (48%) and brothers (46%). See id. at 203. Despite their relative unwillingness to donate, most related organs come from siblings. See id. at 204.
122 See Gift of Life, supra note 16, at 289; Fellner & Marshall, supra note 30, at 1246; Kallich & Merz, supra note 11, at 152.
123 See Gift of Life, supra note 16, at 212, 289; Fellner & Marshall, supra note 30, at 1246. But see Kallich & Merz, supra note 11, at 144–45 (noting that although most pressure can be traced to the family, transplant teams sometimes become so invested in the survival of a patient that they ignore a potential donor’s worries or reluctance to donate).
124 See generally Hart, 289 A.2d 386; Little, 576 S.W.2d 493.
125 See Leonard H. Glantz, Law, Medicine and Socially Responsible Research, 24 AM. J.L. & Med. 213, 220 (1998). See generally Hart, 289 A.2d 386; Little, 576 S.W.2d 493; Baron, supra note 8.
126 See, e.g., Glantz, supra note 125, at 220–24; cf. Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941) (holding that a fifteen-year-old’s consent was invalid to authorize a physician to perform a skin graft on him for the benefit of his cousin, but indicating, in dicta, that the parents’ consent would likely have been sufficient). See generally Baron, supra note 8.
127 See generally, e.g., Curran v. Bosze, 566 N.E.2d 1319 (Ill. 1990); Little v. Little, 576 S.W.2d 493 (Tex. App. 1979, writ denied).
128 See Curran, supra note 9, at 892; Baron, supra note 8, at 177. Professor Baron noted in his 1975 article that at that time there was one state statute that permitted 14-year-olds to consent to donate organs, but that statute has since been repealed. See id. Currently, the only statutes governing organ harvests involve post-mortem harvests. See, e.g., David A. Jeffries, Note, The Body as Commodity: The Use of Markets to Cure the Organ Deficit, 5 Ind. J. Global Legal Stud. 621, 631 (1998) (noting that all fifty states and the District of Columbia adopted the 1968 Uniform Anatomical Gift Act and its 1987 revisions, designed to encourage organ donation and provide guidelines for organ procurement efforts). At least two commentators, however, have advocated some form of legislation which would mandate either participation in donor registries or the actual donation. See generally Anderson, supra note 98 (mandatory participation in bone marrow registries with voluntary donation); Huffman, supra note 17 (compulsory donation under threat of civil and criminal penalties).
129 See, e.g., Hart v. Brown, 289 A.2d 386, 390-91 (Conn. Super. Ct. 1972) (applying substituted judgment standard to authorize a kidney transplant from a minor); In re Doe, 481 N.Y.S.2d 932, 933 (N.Y. App. Div. 1984) (per curiam) (applying best interest standard to authorize a bone marrow harvest from a mentally retarded adult).
130 See Hart, 289 A.2d at 390–91; Doe, 481 N.Y.S.2d at 933.
131 See Dolgin, supra note 13, at 361.
132 See id. The evolution of a child-centered approach in custody disputes, for example, can be traced from the early view that fathers had an absolute right to custody, to the presumption that the mother was the proper custodian, to the recent, more flexible, best interest standard that permits a court of equity to consider the individual circumstances. See Griffith, supra note 4, at 292.
133 See Dolgin, supra note 13, at 360–61.
134 See id. at 361. See generally Curran, 566 N.E.2d at 1319 (holding that the best interest standard was the proper one for evaluating petitions to harvest organs from minors and mental incompetents).
135 See Griffith, supra note 4, at 305, 331; see also Doe, 481 N.Y.S.2d at 932.
136 The substituted judgment doctrine can be traced back to the English case Ex parte Whitbread, 35 Eng. Rep. 878 (Ch. 1816) and the English law of lunacy. See Harmon, supra note 22, at 19. The chancellor in that case was faced with the niece of a lunatic (someone who had once been of sound mind and who might regain his sanity) who pleaded that she needed a greater apportionment of her uncle’s money. See id. at 20. Rather than try to gain some insight into this particular lunatic’s situation or his relationship with this particular relative, the chancellor instead relied on what the objective, “reasonable lunatic” would wish to do under the circumstances. See id. at 22. Because the Whitbread decision was about “remedy[ing] an inconvenience . . . that might result from the general rule of law” without disturbing accepted and established allocations of rights and property, Harmon contends that the substituted judgment doctrine constituted a legal fiction from its very inception. See id. at 7, 22–23; Lynn E. Lebit, Compelled Medical Procedures Involving Minors and Incompetents and Misapplication of the Substituted Judgments Doctrine, 7 J.L. & Health 107, 108 (1992–93). The doctrine has been recognized in American courts since 1844, but only since Strunk v. Strunk has it been extended to medical decisions involving individuals who were never of sound mind. See Harmon, supra note 22, at 32.
137 Cf. Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 336 (1990) (Stevens, J., dissenting). The expectation is that the substitute decisionmaker will have sufficient information or insight into the proclivities of the individual or situation to make a decision which closely approximates the decision the individual would make for himself if he were able. See id. Griffith argues that the usefulness of the standard diminishes as evidence of past preferences becomes less reliable and that where the evidence is unreliable, the standard constitutes a legal fiction. See Griffith, supra note 4, at 303.
138 See Griffith, supra note 4, at 318–23.
139 See generally Strunk, 445 S.W.2d 145; Robertson, supra note 14.
140 See Strunk, 445 S.W.2d at 146; Harmon, supra note 22, at 34–35 (criticizing Strunk for eliminating the protection the original standard provided to incompetent individuals). See generally Lebit, supra note 136.
141 Many cases go unreported. For a sample of Massachusetts slip opinions authorizing harvests, see Baron, supra note 8, at 161–62 nn.15–16.
142 445 S.W.2d 145. Although Strunk was the first reported transplant case, there were a substantial number of unreported cases dating back to 1957. See Baron, supra note 8, at 161–62 nn.15–16 (discussing twenty-two unreported cases out of the Massachusetts courts, including the first petition brought before any court; in every case, courts of equity were found to have the power to authorize organ transplants between minor siblings).
Strunk remains the most frequently cited organ transplant case and has sparked a great deal of debate. Most commentators and courts have concluded that the Strunk court arrived at the proper decision but applied an improper standard.
143 See Strunk, 445 S.W.2d at 149.
144 See id. at 145–46. Jerry was permanently institutionalized. See id. at 146.
145 See id.
146 See id. at 148.
147 See id. at 148; Harmon, supra note 22, at 34–35.
148 See Strunk, 445 S.W.2d at 148.
149 See id. at 150 (Steinfeld, J., dissenting).
150 See id. at 149–50.
151 See id. at 149. The Strunk dissent stated: “[T]o hold that committees, guardians or courts have such awesome power [to remove a kidney from a mentally incompetent individual for transplant purposes] even in the persuasive case before us, could establish legal precedent, the dire result of which we cannot fathom. Regretfully I must say no.” Id. at 151.
152 See, e.g., Hart, 289 A.2d 386; In re Richardson, 284 So. 2d 185 (La. Ct. App. 1973); In re Pescinski, 226 N.W.2d 180 (Wis. 1975).
153 See generally Hart, 289 A.2d 386; Richardson, 284 So. 2d 185; Pescinski, 226 N.W.2d 180.
154 289 A.2d 386.
155 Id. at 389–90.
156 See id. at 388.
157 See id. at 389.
158 See id. (stating: “The side effects of the immunosuppressive drug . . . are numerous and include the possibility of bone marrow toxicity, liver damage, and a syndrome called Cushing syndrome—a roundish face, a ‘buffalo hump’ on the back of the neck, and growth retardation. Some less common side effects are a demineralization of the bone mass which will result in the collapsing of bones of the spine; aseptic necrosis of the femoral head of the hip, making a person unable to walk; peptic ulcer disease with bleeding; hairiness; sexual immaturity; and cataracts of the eyes.”).
159 See Hart, 289 A.2d at 389.
160 See id. at 391.
161 See id. at 389-90. The court recounted the testimony of the Hart family’s clergyman and the guardian ad litem who all agreed that the transplant should go forward. See id.
162 See Richardson, 284 So. 2d at 187; Pescinski, 226 N.W.2d at 182.
163 See Richardson, 284 So. 2d at 187; Pescinski, 226 N.W.2d at 182.
164 In Richardson, the potential donor was a seventeen year-old retarded boy who had a mental age of about three; the average life expectancy for his type of retardation was only twenty-five years. The recipient was his thirty-two year-old sister. See Richardson, 284 So. 2d at 186. In Pescinski, the potential donor was a thirty-nine year-old catatonic schizophrenic. The recipient was his thirty-eight year-old sister who had been on dialysis for five years. See Pescinski, 226 N.W.2d at 180–81.
165 See Richardson, 284 So. 2d at 187; see also Pescinski, 226 N.W.2d at 182.
166 See Richardson, 284 So. 2d at 187; see also Pescinski, 226 N.W.2d at 182.
167 See Richardson, 284 So. 2d at 187; see also Pescinski, 226 N.W.2d at 183 n.1 (Day, J., dissenting) (noting that the majority analogized permitting the kidney harvest to giving away the incompetent’s property).
168 See Richardson, 284 So. 2d at 187.
169 See Pescinski, 226 N.W.2d at 181, 182.
170 See id. at 182 (Day, J., dissenting).
171 See id. at 184.
172 See id. at 183.
173 See id. at 184. In holding that the court could only authorize action that would benefit the incompetent financially or physically, the dissent argued, the incompetent “is forever excluded from doing the decent thing, the charitable thing.” Id.
174 See Richardson, 284 So. 2d at 187; Pescinski, 226 N.W.2d at 181.
175 See Doe, 481 N.Y.S.2d at 933. The appellate decision is no more than a page long, with few facts and little analysis. The lower court’s decision has been sealed, as are many such decisions. See, e.g., Baron, supra note 8, at nn.15 & 16.
176 See Doe, 481 N.Y.S.2d at 932–33.
177 See id. at 933.
178 See 566 N.E.2d 1319; see also Lebit, supra note 136, at 108.
179 See Curran, 566 N.E.2d at 1321. Both trial and appellate courts denied the father’s request that the question of compelling compatibility testing be decided separately from the question of compelling the transplant itself. See id. at 1345. The legal strategy behind the request is transparent: it would likely be more difficult for the mother or the court to resist the transplant if the twins were discovered to be perfect matches. See generally Anderson, supra note 98. In a similar vein, Anderson proposes a mandatory bone marrow registry with voluntary donation. See id. at 494–527. Leaving the actual donation to the discretion of the individual in the event he or she turns out to be a match, Anderson argues, would encourage donation without violating substantive due process or raising privacy concerns. See id. at 527 n.139. Nevertheless, Anderson’s scheme relies on people being shamed or coerced into donating organs once the need for the bone marrow is particularized via a tissue match. See id. at 526.
180 See Curran, 566 N.E.2d at 1320, 1321. The blood test took place in the context of a paternity suit filed by the mother against the father. See id. at 1320.
181 See id. at 1325–26; Lebit, supra note 136, at 108 (noting that “[t]he father argued that under the doctrine of substituted judgment, the children would agree to submit to the procedure if they were old enough to make an informed, rational decision.”).
182 See Curran, 566 N.E.2d at 1323.
183 See id. at 1324 (quoting In re Estate of Longeway, 549 N.E.2d 292, 299 (Ill. 1989)).
184 See id. at 1325–26, 1343.
185 See id. at 1335.
186 See id. at 1343–44.
187 See Curran, 566 N.E.2d at 1344.
188 See id. at 1344.
189 See id.
190 See Lebit, supra note 136, at 113. Professor Baron has noted that “[i]n effect, [the parents] are given the authority to sacrifice the interests of the prospective donor if they reasonably conclude that the costs to him are outweighed by the potential benefits to the recipient.” Baron, supra note 8, at 172.
191 See Strunk, 445 S.W.2d at 146; Doe, 481 N.Y.S.2d at 932. Both the Strunk and Doe courts concluded that the psychological harm the incompetents might experience from the death of their sibling outweighed the physical risks of the harvesting procedures. See Strunk, 445 S.W.2d at 146; Doe, 481 N.Y.S.2d at 932.
192 See Curran, 566 N.E.2d at 1343–44. Curran held, for example, that in order to authorize an organ harvest, a court must find that the donor will benefit psychologically from the transplant and furthermore, that donors can only be expected to realize the psychological benefit when the donor has an existing relationship with their sibling-recipient. See id. Richardson, on the other hand, held that a court must find a more tangible benefit to the donor before it can authorize the harvest. See 284 So. 2d at 187. The Richardson court analogized an organ harvest to the transfer of property: if the transfer of the ‘property’ will not benefit the owner, then a guardian does not have the authority to give that ‘property’ away. See id.
193 The Hart court and the Pescinski dissent are typical of this approach. See Hart, 289 A.2d at 389–90; Pescinski, 226 N.W.2d at 183 (Day, J., dissenting). The Hart court weighed the harms that the immunosuppressive drugs would cause the ill twin if she were to receive a kidney from anyone but her twin. See 289 A.2d at 389–90. The court also noted that because the twins were close, the donor-twin would benefit psychologically from participating in the kidney transplant and, therefore, the Hart court approved the harvest. See id. at 389. The Pescinski dissent similarly advocated a balancing of the donor and recipients’ “relative need” for the organ. See 226 N.W.2d at 182–83 (Day, J., dissenting). The dissent argued that the petition should have been granted because the ill sibling would die without a kidney, whereas the mentally disabled brother would survive with only one kidney. See id.
194 Cf. In re Baby Boy Doe, 623 N.E.2d 326, 330 (Ill. App. Ct. 1994) (refusing to compel a woman to undergo a cesarean section for the benefit of her nine-month old fetus). See generally McFall v. Shimp, 10 Pa. D. & C.3d 90 (1978).
195 See McFall, 10 Pa. D. & C.3d at 91–92.
196 See id. at 91.
197 See id. at 90.
198 See id. at 91–92.
199 Id. at 92 (emphasis in original).
200 See McFall, 10 Pa. D. & C.3d at 91, 92.
201 See Baby Boy Doe, 623 N.E.2d at 330.
202 See id. The state argued that the fetus’s own right to life should be weighed against the mother’s right to consent to or decline medical treatment. See id. Three years later, in In re Brown, the Illinois Supreme Court reaffirmed and extended Baby Boy Doe, holding that the state’s interest in preserving the life of a viable fetus was also insufficient to compel a pregnant woman to submit to medical treatment on behalf of that fetus. See 689 N.E.2d 397, 406 (Ill. App. Ct. 1997). At issue in Brown was a mother’s refusal, on religious grounds, to accept a blood transfusion. See id. On appeal, the court held that the trial court had been wrong to appoint a guardian ad litem to represent the fetus and order that the blood transfusion be performed over the mother’s objections. See id.; John J. Paris, Planning on a Miracle: The Case of Mother Versus Fetus, 111 Christian Century 244, available in 1994 WL 13156725 for a discussion of Baby Boy Doe and two additional, similar cases.
203 See Baby Boy Doe, 623 N.E.2d at 327.
204 See id.
205 See id.
206 See id. at 328.
207 See id. at 331 (citing Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 277 (1990)). See generally In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989).
208 See Baby Boy Doe, 623 N.E.2d at 332 (citing In re A.C., 573 A.2d 1235, 1237 (D.C. 1990) (en banc)).
209 Id. at 333–34 (citations omitted). In dicta, Baby Boy Doe distinguished between compelling a major bodily intrusion, such as a cesarean section or an organ harvest, for the sake of the fetus, and compelling a minor bodily intrusion, such as a blood transfusion. See id. at 334. Three years later, the same court confronted a similar dilemma and explicitly disagreed with Baby Boy Doe’s characterization of a blood transfusion as a minor bodily invasion. See Brown, 689 N.E.2d at 405.
210 See Baby Boy Doe, 623 N.E.2d at 335 (quoting A.C., 573 A.2d at 1261 n.8). In Baby Boy Doe, the court stated: “Enforcement could be accomplished only through physical force or its equivalent. [The mother] would have to be fastened with restraints to the operating table, or perhaps . . . rendered unconscious by forcibly injecting her with an anesthetic, and then subjected to unwanted major surgery. Such actions would surely give one pause in a civilized society, especially when [the mother] had done no wrong.” Id. Three years later, a similar tone of disapproval attended the court’s comment that the mother in Brown had been physically restrained and sedated in order to perform the blood transfusion over her objections. See Brown, 689 N.E.2d at 400.
211 See Baby Boy Doe, 623 N.E.2d at 326.
212 See generally Ferrell v. Rosenbaum, 691 A.2d 641 (D.C. 1997).
213 See id. at 651.
214 See id. at 643. The undisputed evidence of medical malpractice was damning: the child was born with obvious and severe physical deformities including undersized and immature thumbs and a lack of external ear canals, both symptoms of a progressive and fatal form of leukemia called Fanconi anemia. See id. at 643–44. On the basis of these physical abnormalities, the geneticist ordered a series of diagnostic tests, including a chromosome test. See id. The tests confirmed the child’s condition, but in his deposition the geneticist admitted that he never reviewed the results, nor the results of additional tests taken over the next year. See id. at 649 n.15.
215 See id. at 644, 651. The parents separated when the child was two. The mother subsequently lost touch with the father. At the time of the hearing, the father was believed to be homeless somewhere in California. See id. at 644.
216 See id. at 651.
217 See Ferrell, 691 A.2d at 650–52. The mother argued that the odds of conceiving a baby that was a genetic match but who did not share the same genetic defect were 18.75%. See id. at 652. See also Kearney & Caplan, supra note 83, at 268 (noting, curiously without comment, that the odds can be improved through “an incestuous conception between a parent and a child”).
218 See Ferrell, 691 A.2d at 651.
219 See id. at 653 (Terry, J., dissenting).
220 See id. As the whereabouts of the father were unknown, this line of argument was based exclusively on the mother’s assertion at her deposition.
221 See id.
222 See id. at 652. The Ferrell court’s offhand remark equating fatherhood with sperm donor is consistent with its implicit acceptance of the practice of conceiving donor babies. Both view children and fathers in terms of their organs and bodily fluids with no thought to their value as functioning members of a family or their worth and dignity as individual human beings. See id. Robertson adopts a similar posture in his chapter entitled “Farming the Uterus.” See Children of Choice, supra note 34, at 197–219. For a thought-provoking discussion of the ethical and legal dilemmas posed by the related practice of harvesting sperm from dead and comatose men, see Lori B. Andrews, The Sperminator, N.Y. Times Mag., March 28, 1999, at 62.
223 See Ferrell, 691 A.2d at 652.
224 See B.D. Colen, The Price of Life; Marrow-Donor Babies; Conception for Utility Raises Moral, Ethical Stakes, Newsday, Mar. 11, 1990, at 5 (interviewing ethicists and physicians around the country about their views on the Ayala case and the general practice of conceiving children as bone marrow donors) [hereinafter Price of Life].
225 See id. The head of the division of research immunology and bone marrow transplantation at Los Angeles Children’s Hospital is quoted as saying, “I’ve been doing marrow transplants for 20 years . . . and I can think back to 1974 to families where I knew the child was conceived [as a marrow donor].” Id.
226 See Children of Choice, supra note 34, at 213–14. Both parents were over forty. See id.; see also Marissa Ayala, supra note 34, at 78.
227 See, e.g., Marissa Ayala, supra note 34, at 79; Price of Life, supra note 224.
228 See Price of Life, supra note 224 (reporting the case of a couple who conceived a bone marrow match and then gave the child up for adoption); Gianelli, supra note 43 (reporting the case of a couple who wished to conceive, test and abort fetuses until they conceived a bone marrow match); see also Children of Choice, supra note 34, at 213–14; but see Kearney & Caplan, supra note 83, at 269 (asserting that no such cases have actually been reported).
229 See Ferrell, 691 A.2d at 651.
230 The cost-benefit analysis has been criticized elsewhere as vague and standardless. See generally Lebit, supra note 136; Robertson, supra note 14.
231 See Greatest Gift, supra note 3, at 620–21 (noting that one state statute that indeed imposes a duty to rescue “does not in any way attempt to place the value of one life over the value of another,” but that a law compelling an individual to submit to a medical procedure on behalf of a third party would necessarily assume “that one individual’s right to be free from ‘danger of peril’ is somehow less important than another’s similar right”). Friedman argues that expanding the doctrine to compel Good Samaratanism “cannot legally or ethically be maintained.” See id. at 619. But see Huffman, supra note 17, at 414–15 (suggesting a “construct” by which plaintiffs who satisfy certain criteria may obtain a court order and compel a reluctant donor to cooperate under threat of civil and criminal liability).
232 See In re Estate of Longeway, 549 N.E.2d 292, 297 (Ill. 1989) (stating: “No right is more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of [the individual’s] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” (internal quotations omitted)).
233 See infra notes 234–75 and accompanying text.
234 See generally Curran v. Bosze, 566 N.E.2d 1319 (Ill. 1990); In re Doe, 481 N.Y.S.2d 932 (N.Y. App. Div. 1984) (per curiam). But cf. Lawse v. Univ. of Iowa Hosps., 434 N.W.2d 895 (Iowa Ct. App. 1988) (noting that family members may rarely be able to give an informed consent to donate an organ because of pressure from family and medical personnel).
235 See supra notes 69–77, 89–94 and accompanying text (health prospects for transplant recipients); supra notes 85–88, 120 and accompanying text (estrangement of donor-recipients post-transplant); supra note 43 and accompanying text (harvesting procedures).
236 See supra notes 46–94 and accompanying text.
237 See Kallich & Merz, supra note 11, at 145 (noting that “considerable disagreement exists in the field of transplantation regarding the risks of donation . . . .”); supra notes 85–88, 120 and accompanying text.
238See Hart v. Brown, 289 A.2d 386, 389 (Conn. Super. Ct. 1972) (noting that kidney donor would only be restricted from contact sports and the surgery would only last two and one-half hours); Doe, 481 N.Y.S.2d at 933 (noting that bone marrow harvest posed minimal medical risk). But see Curran, 566 N.E.2d at 1344–45. Although Curran turned on the psychological effects on the young donors, the psychological harm that so concerned the court was limited to the mother’s inability to provide the twins the necessary emotional support; the court was either unaware of or unconcerned about the potential psychological harm flowing from participation in the bone marrow harvest itself. See id.
239 See Hart, 289 A.2d at 389; Doe, 481 N.Y.S.2d at 933.
240 See supra notes 38–90 and accompanying text.
241 See supra notes 73–77 and accompanying text.
242 See Kaarela, supra note 33.
243 See supra notes 79–83 and accompanying text.
244 See supra notes 58–69 and accompanying text.
245 See supra notes 58–69 and accompanying text.
246 See supra notes 58–69 and accompanying text.
247 See supra notes 80–82 and accompanying text.
248 See supra notes 103–13 and accompanying text.
249 See BMT Donors, supra note 33, at 487 (noting researchers’ concerns that because estranged donors and recipients refused to participate in the study, the difficulties reported by the study participants were only the “tip of the iceberg”).
250 See supra notes 54–90 and accompanying text.
251 See supra notes 95–103 and accompanying text.
252 See supra notes 95–103 and accompanying text.
253 See, e.g., McFall v. Shimp, 10 Pa. D. & C.3d 90, 91–92 (1978) (refusing to compel a competent adult to undergo a bone marrow harvest for the benefit of his cousin); In re Pescinski, 226 N.W.2d 180, 183 (Wisc. 1975) (Day, J., dissenting) (noting the “impracticality” of obtaining an organ from another brother when, in fact, the brother had simply exercised his right to refuse to donate); cf. Friedman Ross, supra note 16. During the experimental phase of a living donor liver-transplantation program, parents of small children with liver disease underwent a psychiatric evaluation. When asked about their willingness to donate a portion of their livers the parents “were able to say no even when the lives of their children were at risk and no alternative therapies (such as dialysis) were available.” See id.
254 See supra notes 117–18 and accompanying text.
255 See, e.g., Hart, 289 A.2d at 389–90.
256 See id. at 374; Little v. Little, 576 S.W.2d 493, 499 (Tex. App. 1979, writ denied).
257 See Curran, 566 N.E.2d at 1338, 1343 (predisposition to psychological harm measured in terms of the mother’s inability, because of her objections to the bone marrow harvest, to provide emotional support during the frightening, unfamiliar hospital procedure). But see Little, 576 S.W.2d at 499. The Little court noted that the donor who had Down’s Syndrome had a “high threshold for pain” but that her limited intelligence might make the experience “more burdensome” than it would be for an adult. These factors, however, did not, apparently, amount to any peculiar disposition for psychological harm nor unusual circumstance warranting the court’s concern. See id. at 499.
258 See Curran, 566 N.E.2d at 1338.

The very young donor is going to be afraid to come into the hospital, just like any three and a half year old would be. We show them the place that they’ll be staying. In many cases we’ll take them up to the operating room and show them that. We can use play therapy with a doll or with a teddy bear. . . . We have facilities for the parent to stay with the child both before and after the procedure.

Id.; see also Little, 576 S.W.2d at 499.
259 See Curran, 566 N.E.2d at 1338, 1343; see also Baron, supra note 8, at 191.
260See Curran, 566 N.E.2d at 1338, 1343 (noting that the consent and emotional support of the parent “is important to ease the fears associated with such an unfamiliar procedure”); see also Baron, supra note 8, at 191 (reporting a Maryland court that left open the question of whether the medical providers would be “required to offer the donor follow-up psychiatric care.”).
261 See Curran, 566 N.E.2d at 1338, 1343. But see Little, 576 S.W.2d at 499.
262 See Hart, 289 A.2d at 387 (noting that transplant will lead to the family being “happy” rather than “distressed”); Doe, 481 N.Y.S.2d at 933 (noting that donor will benefit from advocacy and company of recipient); cf. Curran, 566 N.E.2d at 1344–45 (noting that donors lacked sufficient relationship with sibling-patient to expect them to benefit psychologically). Baron notes that it is the rare guardian ad litem who fights the petition to authorize an organ harvest. See Baron, supra note 8, at 184–85. More commonly, all parties come to the court having already agreed that the recipient’s benefits outweigh the donor’s harms. See id. This may explain the lack of judicial ink on the subject.
263 See infra notes 269–86 and accompanying text.
264 See Doe, 481 N.Y.S.2d at 933; Little, 576 S.W.2d at 499; infra notes 269-86 and accompanying text.
265 See supra notes 81–84, 114 and accompanying text.
266 See supra notes 59–80 and accompanying text.
267See Hart, 289 A.2d at 387; Doe, 481 N.Y.S.2d at 933; cf. Curran, 566 N.E.2d at 1344 (denying petition to compel a bone marrow harvest where there was no established relationship between the half-siblings).
268 See supra notes 81–84, 111–14 and accompanying text.
269 See supra notes 62–63 and accompanying text.
270 See generally Newmark v. Williams, 588 A.2d 1108, 1118 (Del. 1990). The Newmark court upheld the parent’s right to refuse an aggressive course of cancer treatment which doctors believed was the only hope for their three-year-old leukemic child. See id. at 1110. Doctors considered the treatment “the most aggressive form of cancer therapy short of a bone marrow transplant.” See id. at 1118. If the treatment itself did not kill the boy, it would offer him a forty-percent chance of survival, measured not in terms of cure, but in terms of living for two additional years, cancer free. See id. at 1118, 1119 n.12.
271 See id.
272 See supra notes 58–63 and accompanying text.
273 See supra notes 81–84, 111–14 and accompanying text.
274 See supra note 82.
275 See Gift of Life, supra note 16, at 171–72; supra note 90 and accompanying text.
276 See Curran, 566 N.E.2d at 1325, 1344–45; Baron, supra note 8, at 178.
277 See Curran, 566 N.E.2d at 1325, 1344–45; Baron, supra note 8, at 178; Robbennolt, supra note 10, at 228 (arguing that the best interests standard is flawed precisely because it “imposes self-seeking values upon children” and “fails to allow [them] to act altruistically.”).
278 Cf. Curran, 566 N.E.2d at 1334 (psychiatrist testified that young “mentally and physically healthy children do not understand abstract concepts such as death because they just haven’t had the opportunity to have cognitive development sufficient to manage things like abstractions, hypotheses, and so on.”) (internal quotes omitted).
279 See Kearney & Caplan, supra note 83, at 264.
280 See Dobson, supra note 81 (“Adults are not usually compelled to display altruism, but children are regularly ‘volunteered’ by their parents.”).
281 See id.; supra notes 78–84, 98–125 and accompanying text.
282 See Kearney & Caplan, supra note 83, at 274. “In the immediacy of the desire to save the life of a family member, there may be an undue emphasis on the conceived child’s purpose in saving another life. This could arise from the parents themselves, their families, or others in their community. . . .” Id.
283 Professor George Annas of Boston University Law School was quoted as saying: “‘[W]e’re going to have to depend upon the good sense of the medical community to discourage this, and so far the medical community hasn’t shown much sense. I hope we don’t get to . . . where we have to legislate this, but we will if it becomes a big thing.’” Price of Life, supra note 224; see Kearney & Caplan, supra note 83, at 282. But see Children of Choice, supra note 34, at 211–17. Robertson argues that the only difference between conceiving with the intention to “farm the uterus” for tissue and then aborting versus conceiving and then deciding to abort for any other personal reason is purely symbolic. See id. at 213–14. “Deliberate creation of fetuses to be aborted for tissue procurement is more ethically complex and defensible than its current widespread dismissal would suggest.” Id. at 214.
284 See Children of Choice, supra note 34, at 215; Price of Life, supra note 224 (quoting the director of the Center for Biomedical Ethics at Case Western Reserve Medical School in Cleveland that few decisions to have children can “stand up to rational scrutiny.”).
285 See Price of Life, supra note 224 (quoting a senior associate from one of the nation’s leading bioethics think tanks, “[i]t’s the classic nightmare of using people as tissue and organ banks, and . . . we have to respond to it as the classic nightmare. There’s a revulsion that . . . kick[s] in.”).
286 See generally Carol Gilligan, In A Different Voice: Psychological Theory and Women’s Development, 151–74 (2d ed. 1993).
287 See Price of Life, supra note 224 (stating: “What is the purpose of any human being or child? . . . [I]t’s not to be used as an object for another person”).
288 See id.
289 See id.
290 See 691 A.2d 641, 651 (D.C. 1997) (vacating the superior court’s grant of summary judgment on the grounds that the geneticist’s negligence was a substantial factor in the child’s injury).
291 See id.
292 See Kearney & Caplan, supra note 83, at 279 (expressing the concern that to the extent the state’s interest in a woman’s reproductive process is unsettled, the possibility exists that a woman could be legally compelled to conceive and carry a donor baby to term).
A 1990 news article reported that a couple consented to use their six year-old daughter as a bone marrow donor for their leukemic son only after a court threatened to charge them with child abuse and remove the children from the home. See Andrea Boroff Eagan, Who Decides for Women?, American Health, Sept. 1990, at 42. Eagan contrasts this with the report of an Arkansas man who refused to donate bone marrow to his leukemic brother but was left in peace. See id.
293 See Eagan, supra note 292; cf. Bone Marrow Dispute, Wash. Post, Jan. 20, 1990, at B5. A Virginia woman filed a claim against the father of her four month-old son to compel him to be tested for bone marrow compatibility as it was his “duty and obligation to undergo minimally intrusive tests and, if eligible, to donate bone marrow to his son.” See Eagan, supra note 292; cf. Bone Marrow Dispute, supra, at B5 (internal quotes omitted). USA Today followed the story and interviewed ethicists who logged their disapproval of compelling a parent to donate to their child. See Andrea Stone, Father Sued for Bone Marrow, USA Today, Jan. 19, 1990, at 3A. The news reports noted that the woman had repeatedly pleaded with the father to come forward and he had refused. A week after the story broke, however, the claim was dropped when the father underwent tests, claiming that he had been unaware that a sample of his blood had been sought. See id.
294 See Kearney & Caplan, supra note 83, at 279; Eagan, supra note 292.
295 Cf. Curran, 566 N.E.2d at 1335 (reporting psychiatrist’s testimony that whether a child feels guilty about not having donated will depend entirely on the parent taking responsibility for having made a difficult decision and not laying the burden on the child); see Gift of Life, supra note 16, at 444–45.
296 See Curran, 566 N.E.2d at 1334; see also supra notes 102–10 and accompanying text.
297 See Nathan Seppa, Teens’ Altruism Grows Like They Do-In Spurts, APA Monitor, June 1996; cf. Curran, 566 N.E.2d at 1334 (noting a psychiatrist’s testimony that “mentally and physically healthy children do not understand abstract concepts such as death because they just haven’t had the opportunity to have cognitive development sufficient to manage things like abstractions, hypotheses, and so on.”).
298 See Curran, 566 N.E.2d at 1334; Seppa, supra note 297; supra notes 103–125 and accompanying text.
299 See Curran, 566 N.E.2d at 1334; Seppa, supra note 297; supra notes 103–125 and accompanying text.
300 See Hart, 289 A.2d at 390. The Hart court expressed the dilemma: “[The] question before this court is whether it should abandon the [recipient] to a brief medically complicated life and eventual death or permit the . . . parents to take some action based on reason and medical probability in order to keep both children alive.” Id.; see also Baron, supra note 8, at 183.
301 See Hart, 289 A.2d at 390; Baron, supra note 8, at 183.
302 See, e.g., Baron, supra note 8, at 187 (suggesting that guardians ad litem be appointed for all donors, that all guardians be members of an established panel to ensure that the attorneys in that role have some expertise in the area and further, that proceedings take place in probate court because probate judges deal daily with “intrafamily conflict and tension”); Linda Delaney et al., Altruism by Proxy: Volunteering Children for Bone Marrow Donation; Opinions of Various Professionals, 312 British Med. J. 240 (1996) (suggesting that “a forum, independent of the parents and medical advisers” made up, perhaps, of independent medical social workers should be responsible for deciding the petitions); Griner, supra note 101, at 608–10 (advocating adoption of a rebuttable presumption against harvesting organs from minors which could only be overcome by clear and convincing evidence that the donor would benefit physically or financially); Lebit, supra note 136, at 127–29 (suggesting a “higher scrutiny best interests standard” which would require clear and convincing evidence that a compelled procedure is in the child or mentally disabled adult’s best interests, the evidence to be provided in large part by the legal, medical and philosophical communities).
303 See Baron, supra note 8, at 187; Delaney, supra note 302; Griner, supra note 101, at 608–10; Lebit, supra note 136, at 127–29.
304 See Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 428 (Mass. 1977). In Saikewicz, the court stated:

The significant decisions of life are more complex than statistical determinations. Individual choice is determined not by the vote of the majority but by the complexities of the singular situation viewed from the unique perspective of the person called on to make the decision. To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality.

Id.; see also Baron, supra note 8, at 187; Delaney, supra note 302; Griner, supra note 101, at 608–10; Lebit, supra note 136, at 127–29.
305 See Dolgin, supra note 13, at 399, 413–14. Dolgin further argues that substitute—or paternalistic decisions—may inflict harm rather than protect children from harm. See id. at 413. As an example, Dolgin discusses court decisions which require young, pregnant teenagers to petition judges for permission to undergo abortions. See id. While adult women may seek abortions without having to justify, or even understand, the basis of their decision, such procedures demand that the teenager be able to articulate the reasons underlying her decision to seek an abortion in the intimidating setting of a judge’s chamber or courtroom. See id. at 414. Dolgin’s argument is that this procedural requirement burdens, rather than protects, a teenager’s right to terminate a pregnancy. See id.
306 See generally Curran v. Bosze, 566 N.E.2d 1319 (Ill. 1990).
307 See id. at 1344.
308 See id. at 1325–26, 1343–44.
309 See id.
310 See id. at 1343–44.
311 See Curran, 566 N.E.2d at 1335; supra notes 81–84, 114 and accompanying text.
312 See Curran 566 N.E. 2d at 1343; see also Wisconsin v. Yoder, 406 U.S. 205, 234 (1972); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
313 See, e.g., Dufault, supra note 37, at 230; Robbennolt, supra note 10, at 216–17.
314 See Dolgin, supra note 13, at 361.
315 See Curran, 566 N.E. 2d at 1339–40; cf. Patricia Huna, Infants as Organ Transplant Donors: Should it Happen?, 6 Sum. Health Law. 24, 26 (1992). Huna adheres to the belief that the best interest standard removes third-party interests from the equation and goes on to argue that that is one of the failings of the test. See Huna, supra, at 26. Only those courts committed to denying the parents’ request, however, actually apply the test in this way. See generally In re Richardson, 284 So. 2d 185, 186 (La. Ct. App. 1973); In re Pescinski, 226 N.W.2d 180 (Wisc. 1975). Courts determined to permit the harvest routinely weigh the costs to the recipient against the benefit to the donor, and thereby, reinsert third-party interests back into the equation. See generally In re Doe 481 N.Y.S.2d 932, 933 (N.Y. App. Div. 1984); Little v. Little, 576 S.W.2d 493, 497 (Tex. Civ. App. 1979).
316 See, e.g., In re Baby Boy Doe, 623 N.E.2d 326, 330 (Ill. App. Ct. 1994); McFall v. Shimp, 10 Pa. D. & C.3d 90, 90 (1978). For two arguments that adults should be compelled to be tested or donate organs, see generally Anderson, supra note 98, and Huffman, supra note 17.
317 See Griner, supra note 101, at 608.
318 See Dobson, supra note 81; supra notes 116–17 and accompanying text.
319 “The state cannot presume that a child and his parents are adversaries.” Griffith, supra note 4, at 315 (quoting Santosky v. Kramer, 455 U.S. 745, 760 (1982) (termination of parental rights)); but see Baron, supra note 8, at 186 (arguing that despite the “natural distaste” for subjecting family members to an adversarial, judicial proceeding, “here, as in intrafamily and juvenile delinquency proceedings, the imposition of some emotional burdens on family members is necessary because the interests protected by the process are substantial and the costs of using a nonadversarial system are quite high.”).
320 See Dolgin, supra note 13, at 363. The family unit is the optimal social structure for “preparing children to become productive members of society, developing religious and cultural diversity among citizens, and fulfilling support obligations that would otherwise fall to the state.” See Griffith, supra note 4, at 289.
321 See Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (stating that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”). However, while “[p]arents may be free to become martyrs themselves . . . it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” See Prince v. Massachusetts, 321 U.S. 158, 170 (1944). For an examination of more recent Supreme Court opinions touching on the constitutional rights of children to make choices for themselves that differ from those of their parents, see generally Dolgin, supra note 13.
322 See generally DeShaney v. Winnebago Co. Dept. of Social Serv., 489 U.S. 189 (1989) (denying claim that the state has a constitutional duty to protect a child from parental abuse notwithstanding the state’s awareness of the abuse and the child’s resulting permanent disability).
323 See Dolgin, supra note 13, at 364.
324 See id. at 357 (discussing Griswold and noting that the body of family case law was almost exclusively developed during the 1960s and 1970s).
325 See Deborah Hardin Ross, Sterilization of the Developmentally Disabled: Shedding Some Myth-Conceptions, 9 Fla. St. U. L. Rev. 599, 600 n.5 (1981) (noting that historically, the mentally retarded individual has been considered a “menace,” a “subhuman organism,” “diseased,” an object of “pity,” “dread” or “ridicule,” or an “eternal child”). Today, medication and appropriately tailored educational opportunities permit many mentally disabled adults to be high functioning and semi-independent. See, e.g., The Arc of the United States (The National Organization of and for People With Mental Retardation and Related Disabilities and Their Families), (visited February 1, 2000) <http://www.thearc.org/>.
326 See Dolgin, supra note 13, at 361.
327 See generally Dolgin, supra note 13.
328 See id. at 370–71. The case law is “contradictory and uncertain” in its response to the changing status of children and childhood. “[S]ometimes children . . . are assumed to be best protected when their individuality is . . . subsumed by parental authority. . . . [S]ometimes children are recognized as complete human beings. . . . Sometimes the law reinforces parental authority even against children burdened by the exercise of that authority.” See id.
329 See id. at 361 n.84.
330 See 29 C.F.R. § 570.2 (1998) (child labor regulations); Dolgin, supra note 13, at 406.
331 See 29 C.F.R. § 570.2 (1998) (child labor regulations); Dolgin, supra note 13, at 406.
332 See Harmon, supra note 22, at 7 (noting that one can avoid an undesirable result from the application of a general rule of law by changing the general rule of law rather than by fabricating a legal fiction).
333 See Ferrell v. Rosenbaum, 691 A.2d 641, 651 (D.C. 1997).
334 For a thorough discussion of the constitutional objections to compelling children and mentally disabled adults to donate organs, which, to date, only the lower court in Curran has raised, see Greatest Gift, supra note 3, at 622–26.
335 See Dolgin, supra note 13, at 429; Robbennolt, supra note 10, at 229, 330.
336 See McFall v. Shimp, 10 Pa. D. & C.3d 90, 92 (1978); In re Pescinski, 226 N.W.2d 180, 183 (Wisc. 1975) (Day, J., dissenting); supra notes 115–17 and accompanying text.
337 See supra notes 56–90 and accompanying text.