In 1984, scientists isolated a new pathogen, now called human immunodeficiency virus (HIV), that is almost certainly the etiological agent for the acquired immunodeficiency syndrome (AIDS). It has been estimated that there are between 500,000 and 1,750,000 asymptomatic, chronically HIV-infected individuals in the United States. In a remarkably short time, investigators developed a number of blood tests that indicate whether an individual is likely to be infected with this virus. These assays are now being used to test patients with symptoms suggesting AIDS or related syndromes, to screen donated blood, to evaluate individuals concerned about their infection status, and to screen new military recruits, active-duty soldiers, and ROTC students. Almost weekly, new proposals are advanced for screening different subsets of the population.

Since AIDS was first identified in 1981, its rate of spread among a primarily young and vibrant population has chilled the medical and lay communities. Today, the public response is sober and oriented toward the examination of specific policies that could lessen the impact of the disease. After six years' experience it is now feasible to propose a strategy for combatting AIDS. Consensus around the following policies should form the nucleus of the public health strategy to combat AIDS before the intervention of an effective vaccine or treatment.

Unprotected sexual intercourse and use of contaminated needles are intentional activities. Voluntary changes in behavior to avoid a high risk of transmission is currently the overriding public policy objective. The first line of defense in controlling AIDS, therefore, is to inform and educate individuals about high-risk behavior and about methods of altering behavior to protect against transmission of the infection.

Is it possible to have an effective legal safeguard within an inherently therapeutic context? This is the issue underlying a significant contrast in the way that similar provisions of the Mental Health Act 1983 (England and Wales) have been interpreted and applied in two different settings: in the purely legal setting of the High Court and by a judicial body in a hospital setting, namely, the Mental Health Review Tribunal.

Before dealing explicitly with the legal framework adopted by the 1983 act, I will briefly set out the kinds of strategies the law can employ to regulate behavior. One technique used in some areas of the law is to draw up an exhaustive list of rules and principles in an attempt to determine the outcome of cases. In this respect the law is concerned to achieve substantive justice; little discretion is vested in decision- makers. Alternatively, the law may confer complete discretion on decision-makers, and insist merely that the rules of natural justice be complied with in the process of making decisions.

The man on the Clapham omnibus, as common lawyers know, was a late nineteenth and early twentieth century image of the ordinary reasonable man who played an important part in fixing common law standards. As a lawyer with a continuing but general interest in medicine, biotechnology, ethics, and the law, I offer the following comments on the conference's topic of “Health Resource Allocation” from what may approximate the standpoint of an ordinary reasonable man.

How much “health” can a society afford? I do not think that it is possible to maintain that there is a right to health, expressed as an unqualified right to treatment—though I understand that the argument has been raised in the United States that there is a constitutional basis for a claim of entitlement to treatment for civilly committed mental health patients. So far as English law is concerned, the answer to this question is clear. In 1980 the English Court of Appeal dealt with a case in which four people in Staffordshire argued that the health services were insufficient in their area.

The rapid pace of medical innovation has raised the question: Can existing institutions, such as law reform commissions and other official bodies, and existing techniques, such as traditional legislation, deal effectively with the regulatory problems of today's world?

The New Biology has exhibited the capacity to arouse storms of public debate and to paralyze politicians or impel them towards unwise legislation. Examples of new and problematic technologies are the treatment of grossly defective newborn babies, live organ transplantation, cloning, the diagnosis of brain death, and, perhaps most important of all, manipulation of genes. But if there is one procedure that typifies the extreme reactions roused by the New Biology, it is in vitro fertilization (IVF), the technique whereby human eggs are fertilized outside the human body.

At the epicenter of the storm over IVF is the public debate concerning laboratory research and experiment on fertilized human eggs.

Over the past three years there has been a flurry of legislation in Australia to provide answers for some of the legal questions and issues emanating from the new birth technologies. The chief of these is in vitro fertilization: the formation, in the laboratory, of a human zygote. The final result is, sometimes, a live birth. The test-tube baby process, as it is usually described in the media, has developed to include not only fertilization of a wife's ova with her husband's sperm but also the employment of donated gametes; cryopreservation of ova, sperm, and embryos; and, in terms of the possible, the employment of women to bear, deliver, and surrender a baby developed from a couple's laboratory embryo.

The publicity given to the new birth technologies, and the concern (and sometimes consternation) they have aroused, has been accompanied by renewed examinations of those older responses to infertility: AID (artificial insemination by donor) and surrogate mother arrangements effected either by the euphemistically and misleadingly labeled NID (natural insemination by donor) or by artificial insemination.

The law has characteristically defended life and proscribed any act to end it, for whatever reason. But sustaining life is increasingly a medical question, and decisions to end it are now cast as “treatment” decisions. Some treatment decisions that leave basic biological needs unmet are clearly intended to end a life that is “over.” The provision of food and water has a particularly intimate association with the nursing function of nurturance and care. The surgeon general, in another context, has said that nourishment in all cases is “the bottom line” and that removal of sustenance is medical neglect per se. I intend here to explore two questions: Have the courts endorsed, and should they endorse, decisions by or substitute decisions for patients who choose intentionally to end their lives in health care settings? And what rights and duties do the hospital and professional staff have to decline to withdraw artificial feeding?

Modern developments in biomedical science and technology have raised legal problems regarding the initial phase of human life. The possibility of genetic manipulation and of influencing the human genome is in sight, embryos are already being treated in utero, and in vitro fertilization and embryo transfer have been successfully performed. Embryos have been fertilized in vivo, flushed from the womb. and implanted in surrogate mothers.

These developments have raised questions not only for family law but also for health law. These questions include the permissibility and regulation of genetic manipulation, the equitable distribution of the new techniques, the consequences for future generations of present-day decisions, the right to procreation, the role of the state, and the freedom of parents, especially the pregnant woman, in relation to the embryo. Other problems involve confidentiality and privacy, the relationships among the several people who are producing the child, and the status of the embryo in vivo and in vitro.

Mark Twain once said of Wagner's music, “It's not as bad as it sounds.” Likewise, it may be said of Peter Singer and Helga Kuhse's stroll through the issues involving embryo research: “It's not as easy as it sounds.”

Today it seems clear that Aldous Huxley's version of a Brave New World is much closer to the mark than George Orwell's 1984. We will not have to be dragged into a technologically dominated future by a totalitarian government; we will go willingly, cheering almost any change as “better” and accepting science as always “improving” on nature. This childlike faith in science is at the heart of Prof. Singer and Dr. Kuhse's hymn to embryo research. They seem to believe that embryo research will not only lead to the prevention and cure of genetic disorders but also to a cure for cancer, and cultured tissues for transplantation. Even if one accepts this rosy view, the acquisition of important scientific knowledge is only a necessary, not a sufficient justification for experimentation.

I agree with Dr. Kuhse and Prof. Singer on many points. It is of course ethically defensible to decide sometimes that a seriously handicapped newborn baby may be better off dead, that medicine can do no more to help, and that to stop or not initiate medical treatment may be the best we can do. It is equally true and ethically defensible that these decisions are sometimes based at least in part on predictions about the baby's present and future quality of life. It would be foolish to pretend that quality-of-life considerations should be or can be excluded from these decisions. I argue that the interests and wishes of the family must be given serious consideration, if not that they should be decisive at the expense of the newborn's best interests.

I do, however, seriously object to the claim that some infants with severe disabilities should be killed. I will not repeat the familiar philosophical and other arguments as to why there is arguably, given certain conditions, a significant moral difference between not treating and killing. Instead, my refutation of infanticide will take a more indirect route.

Research on the embryo offers the prospect of important medical advances. The first and most immediate prospect is in improving the success rate of in vitro fertilization. Without the prospect of such improvement, it may be doubted if the muchapplauded IVF program is worth the resources now being allocated to it. Embryo research is also needed to ensure that embryos created from frozen human ova will develop normally, and to test techniques for micro-injection of sperm directly into the ovum, which could overcome the problem of male infertility due to low sperm count or abnormal sperm. The next area of research will be into the prevention of genetic defects. If defects can be identified in early embryos, couples who carry defective genes and would otherwise seek testing during pregnancy, followed by abortion if the test is positive, will be able to use IVF followed by the transfer only of those embryos that are free from the defect. Further research may lead to the development of gene therapy, which could be effective in those cases where an individual has already been born with a single-gene defect like thalassemia, sickle-cell anemia, ADA and PNP deficiencies, and Lesch-Nyhan syndrome.