Biomedical Ethics and the Law

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Biomedical Ethics and the Law

• LEE SWEE SENG
• LLB, LLM, MBA
• Advocate SolicitorNotary Public, Trademark,
  Patent Agent
• Certified Mediator
• sweeseng_at_tm.net.my
• www.leesweeseng.com

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• The Law Relating to Abortion

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The Law Relating to Abortion

• Section 312 Penal Code
• Whoever voluntarily causes a woman with child
  to miscarry shall be punished with
• a) imprisonment up to 3 years or
• b) fine or
• c) both

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The Law Relating to Abortion

• Section 312 Penal Code (contd)
• and if the woman is quick with child, shall be
  punished with
• a) imprisonment up to 7 years, and
• b) fine

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The Law Relating to Abortion

• Definition of Woman Quick with Child
• Bouviers Law Dictionary, Revised 6th Edition
  (1856)
• The mother is said to be quick with child
  when the motion of the foetus, called quickening,
  is felt by the mother.

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The Law Relating to Abortion

• Definition of Woman Quick with Child
• Bouviers Law Dictionary, Revised 6th Edition
  (1856)
• Quickening happens at different periods of
  pregnancy in different women.
• Usually about the 15th or 16th week after
  conception.

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The Law Relating to Abortion

• Explanation to S312
• A woman who causes herself to miscarry is within
  the ambit of S312

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The Law Relating to Abortion

• Exception to S312
• S 312 does not apply to
• a registered medical practitioner who terminates
  a womans pregnancy if he
• a) forms an opinion in good faith, that the
  continuance of pregnancy would

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The Law Relating to Abortion

• Exception to S312 (contd)
• i) risk the life of the mother, or
• ii) causes injury to the mental or physical
  health of the mother,

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The Law Relating to Abortion

• Comments to S132
• The opinion of one medical practitioner formed
  in good faith that the continued pregnancy
  involve risk to the life to the mother suffices.

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The Law Relating to Abortion

• PP v Dr Nadason Kanagalingam 1985 2 MLJ 122
• The facts
• The woman had tubal ligation done by the
  accused. Later, she was found to be pregnant and
  had enlarged varicose veins. The accused gave her
  a saline injection, and a foetus was aborted.

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The Law Relating to Abortion

• PP v Dr Nadason Kanagalingam 1985 2 MLJ 122
• The facts (contd)
• The accused gave evidence that he performed the
  abortion in good faith to save the life of the
  woman, who was suffering from enlarged varicose
  veins which might cause pulmonary embolism.

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The Law Relating to Abortion

• PP v Dr Nadason Kanagalingam 1985 2 MLJ 122
• Held -
• Procuring an abortion is a serious matter and
  should only be done as a last resort to save the
  life of a woman from becoming a mental wreck.

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The Law Relating to Abortion

• PP v Dr Nadason Kanagalingam 1985 2 MLJ 122
• Held -
• The accused had not given reasonable thought and
  had not taken enough steps to examine the woman
  further.

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The Law Relating to Abortion

• PP v Dr Nadason Kanagalingam 1985 2 MLJ 122
• Held -
• His finding that the woman had enlarged varicose
  veins is a result of his mere clinical
  examination, as there were no statistics to show
  from the cases of pulmonary embolism how many
  were caused by varicose veins.

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The Law Relating to Abortion

• PP v Dr Nadason Kanagalingam 1985 2 MLJ 122
• Held -
• Therefore, there was no indication that the
  womans life was or would be in danger if the
  pregnancy was allowed to continue.

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The Law Relating to Abortion

• Section 314 Penal Code
• Whoever causes death to the pregnant mother by
  an act done with intent to cause miscarriage,
  shall be punished with
• a) imprisonment up to ten years, and
• b) liable to fine

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The Law Relating to Abortion

• Section 314 Penal Code
• If the act is done without the womans consent,
  shall be punished with
• a) imprisonment up to 20 years

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The Law Relating to Abortion

• Explanation to Section 314 Penal Code
• It is not essential that the offender should
  know that the act is likely to cause death.

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The Law Relating to Abortion

• The amount of fine that can be levied under S312
  and S314 Penal Code
• S283(1) Criminal Procedure Code
• in the absence of any express provision
  relating to the fine in such law contained, the
  following provisions shall apply-

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The Law Relating to Abortion

• The amount of fine that can be levied under S312
  and S314 Penal Code
• S283(1)(a) Criminal Procedure Code
• where no sum is expressed to which the fine may
  extend, the amount to which the offender is
  liable is unlimited, but shall not be excessive

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The Law Relating to Abortion

• Section 314 Penal Code
• Mary Shim v PP 1962 1MLJ 132
• The court was satisfied that the accused
  procured an abortion by inserting a stick into
  the deceaseds womb. The deceased contracted
  septicaemia from which she died of septic
  abortion.

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The Law Relating to Abortion

• The Position in India
• Abortion in India is legalized by the
• Medical Termination of Pregnancy Act 1971 (came
  into effect on 1.4.1972) as a method of
  curtailing population growth.

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The Law Relating to Abortion

• The Position in India
• Section 3(2) Medical Termination of Pregnancy
  Act 1971
• Pregnancies may be terminated by registered
  medical practitioners where
• a) length of pregnancy does not exceed 12
  weeks

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The Law Relating to Abortion

• The Position in India
• Section 3(2) Medical Termination of Pregnancy
  Act 1971
• b) length of pregnancy exceeds twelve weeks
  but does not exceed twenty weeks, if  at
  least two registered medical practitioners are..

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The Law Relating to Abortion

• The Position in India
• Section 3(2)(b) Medical Termination of Pregnancy
  Act 1971
• Of opinion, formed in good faith, that,-
• (i) the continuance of the pregnancy would
  involve risk to the life of the pregnant woman
  or of grave injury to her physical or mental
  health or

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The Law Relating to Abortion

• The Position in India
• Section 3(2)(b) Medical Termination of Pregnancy
  Act 1971
• (ii) there is a substantial risk that if the
  child were born, it would suffer from such
  physical or mental abnormalities as to be
  seriously handicapped.

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The Law Relating to Abortion

• The Position in India
• Medical Termination of Pregnancy Act 1971
• Niketa Mehtas case (4.8.2008)
• The Bombay High Court refused permission to
  abort a 26-week foetus with serious heart defect,
  as the doctors were uncertain whether there was
  any substantive risk that the child would be
  seriously handicapped all its life.

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The Law Relating to Abortion

• The Position in India
• Section 3 Medical Termination of Pregnancy Act
  1971
• Explanation 1
• Where pregnancy is caused by rape, the anguish
  caused by such pregnancy shall be presumed to
  constitute a grave injury to the mental health of
  the pregnant woman.

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The Law Relating to Abortion

• The Position in India
• Section 3 Medical Termination of Pregnancy Act
  1971
• Explanation 2
• pregnancy occurs as a result of failure of any
  device or method used for the purpose of
  limiting the number of children, the anguish
  caused by such unwanted pregnancy may be presumed
  to constitute grave injury to mental health.

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The Law Relating to Abortion

• The Position in India
• Comments to Section 3 Medical Termination of
  Pregnancy Act 1971
• The number of registered medical practitioners
  is relevant only to form the opinion.

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The Law Relating to Abortion

• The Position in India
• Comments to Section 3 Medical Termination of
  Pregnancy Act 1971
• Once the opinion has been formed, the actual
  termination of pregnancy may be done by one
  registered medical practitioner.

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The Law Relating to Abortion

• The Position in India
• Comments to Section 3 Medical Termination of
  Pregnancy Act 1971
• It is not necessary that more than one
  registered medical practitioner should act
  together to terminate a pregnancy.

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The Law Relating to Abortion

• The Position in India
• Section 5 Medical Termination of Pregnancy Act
  1971
• Pregnancy exceeding 20 weeks may be terminated
  even without the opinion of 2 registered medical
  practitioner where

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The Law Relating to Abortion

• The Position in India
• Section 5 Medical Termination of Pregnancy Act
  1971 (contd)
• a) the registered medical practitioner is of
  opinion, formed in good faith,
• b) that the termination is immediately
  necessary to save the life of the pregnant
  woman.

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The Law Relating to Abortion

• The Position in UK
• Section 37 Human Fertilization and Embryology
  Act
• Abortion is legal only up to 24 weeks unless
• a) necessary to save the mothers life,
• b) there are evidence of extreme fetal
  abnormality, or
• c) theres grave risk of physical or mental
  injury to the mother.

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The Law Relating to Abortion

• The Position in UK
• R v Bourne 19391 K.B. 687
• Held -
• Doctors could rely on the defence of necessity,
  for an act done in good faith in performing an
  abortion to avert a grave threat to the life and
  health of a pregnant young girl who was brutally
  raped.

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• In Vitro Fertilization

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In Vitro Fertilization

• Destruction of Embryo
• Issues -
• There are no consensus as to when human life
  begins
• There are no agreement whether discarding of
  embryo is equivalent to abortion

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In Vitro Fertilization

• Destruction of Embryo
• Guideline of the Malayan Medical Council on
  Assisted Reproduction
• Clause 4
• If couples are separated, divorced or one of
  them becoming deceased, the stored gametes cannot
  be used and has to be destroyed

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In Vitro Fertilization

• Meaning of Gamete
• A single male or female reproductive cell (sperm
  or egg cell), capable of joining with a similar
  single cell of the other sex to form a zygote

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In Vitro Fertilization

• Meaning of Gamete
• Each gamete contains a single (haploid)
  chromosome the double (diploid) chromosome of
  the resulting zygote contains the genetic
  information programming the growth of the new
  individual.

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In Vitro Fertilization

• Selective Fetal Reduction
• Guideline of the Malayan Medical Council on
  Assisted Reproduction
• Clause 10
• Where more than 3 fetuses are gestated, fetal
  reduction may be considered if

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In Vitro Fertilization

• Selective Fetal Reduction
• Guideline of the Malayan Medical Council on
  Assisted Reproduction
• Clause 10 (contd)
• a) the prospect of fetal viability is
  compromised or
• b) the health or life of the mother is
  threatened.

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In Vitro Fertilization

• Prohibited Practices
• Guideline of the Malayan Medical Council on
  Assisted Reproduction
• Clause 15
• Research cannot be carried out on human embryos
  more that 14 days old or where primitive streak
  has appeared, whichever earlier except with
  approval of Health Ministry

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• The Law Relating to Euthanasia

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The Law Relating to Euthanasia

• The Definition of Death
• a) Traditional definition
• Bennett v Peattie 1925 57 OLR 233
• Permanent cessation of cardiovascular and
  respiratory functions

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The Law Relating to Euthanasia

• The Definition of Death
• b) Section 46 Penal Code
• The word "death" denotes the death of a human
  being, unless the contrary appears from the
  context
• The Penal Code has failed to provide for a clear
  definition of death.

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The Law Relating to Euthanasia

• The Definition of Death
• c) The development of organ transplant led to
  the concept of brain death.
• The concept of brain death is important to
  facilitate cadaveric organ transplants from brain
  dead donors

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The Law Relating to Euthanasia

• The Definition of Death
• d) Brain Death
• A person is recognized as dead when the
  function of the brain as a whole, including the
  brain stem, is irreversibly lost.
• A person certified to be brain dead is dead

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The Law Relating to Euthanasia

• Advance Directives
• Written instructions regarding the declarants
  medical care preferences.
• Includes-
• a) Living will
• b) Medical power of Attorney
• c) Do Not Resuscitate order

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The Law Relating to Euthanasia

• Advance Directives
• Living will
• Describes life sustaining treatments which the
  declarant wants, in the event he suffers from
  terminal illness or is in permanent vegetative
  state.

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The Law Relating to Euthanasia

• Advance Directives
• a) Living will
• Conditions to be fulfilled for the Living will
  to become effective -
• i) declarant is incapacitated
• ii) declarant is suffering from a terminal
  illness or is permanently unconscious
• iii) ultimate recovery is hopeless

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The Law Relating to Euthanasia

• Advance Directives
• a) Living will
• Conditions to be fulfilled for the Living will
  to become effective -
• Therefore, where the declarant suffers from a
  heart attack but he does not have any terminal
  illness and is not permanently unconscious,

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The Law Relating to Euthanasia

• Advance Directives
• a) Living will
• Conditions to be fulfilled for the Living will
  to become effective -
• The declarants Living will will not have
  any effect and he will still be resuscitated
  even if he had a living will indicating that he
  does not want life prolonging procedures

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The Law Relating to Euthanasia

• Advance Directives
• b) Medical Power of Attorney
• Designates an individual to make medical
  decisions in the event the declarant is unable
  to do so.

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The Law Relating to Euthanasia

• Advance Directives
• c) Do Not Resuscitate Order
• Declarants request not to have
  cardiopulmonary resuscitation (CPR) if his
  heart stops or if he stops breathing.

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The Law Relating to Euthanasia

• Penal Code does not expressly provide on the law
  relating to euthanasia. It provides for -
• i) Abetment of suicide
• Section 306 Penal Code
• abetment of suicide is an offence and
  punishment can extend up to 10 years imprisonment
  and fine

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The Law Relating to Euthanasia

• i) Abetment of suicide
• Section 107(c) Penal Code
• Abetment of suicide includes the acts of a
  person who intentionally aids, by an act or
  illegal omission, the doing of that thing,

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The Law Relating to Euthanasia

• i) Abetment of suicide
• Illustration to Section 107(c)
• Abetment can be done by procuring or
  facilitating

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The Law Relating to Euthanasia

• ii) Attempt to Commit Suicide
• Section 309 Penal Code
• Whoever attempts to commit suicide shall be
  punished with imprisonment for a term up to one
  year or with a fine or with both

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The Law Relating to Euthanasia

• Provisions under the Penal Code
• Non brain-dead patients
• Euthanasia may fall under S306 and S309 of the
  Penal Code, as euthanasia may be a form of
  attempted suicide, or abetted suicide
• To this extent, euthanasia is a crime, and it
  would seem that the doctors cannot switch off the
  ventilator

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The Law Relating to Euthanasia

• Common Law
• Airedale NHS Trust v Bland (1993) AC 789, Lord
  Goff at p 865
• General Rule
• Euthanasia is not lawful at common law

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The Law Relating to Euthanasia

• Common Law
• Exceptions
• Court can order for the withdrawal of life
  support by exercising its inherent power to
  exercise parens patriae jurisdiction, and if the
  action is in the patients best interest

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• i) Physical Benefit
• Re A (children) (conjoined twins surgical
  separation) (2000) 4 All E.R. 961
• The Facts -
• J and M were conjoined twins.J sustained the Ms
  life by circulating oxygenated blood through a
  common artery.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• Physical Benefit
• Re A (children) (conjoined twins surgical
  separation) (2000) 4 All E.R. 961
• The Facts -
• If they were not separated, Js heart would
  eventually fail and both would die. If separated,
  J would have a life worthwhile but M would die.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• Physical Benefit
• Re A (children) (conjoined twins surgical
  separation) (2000) 4 All E.R. 961
• Held -
• The operation was in the best interest of each
  twin, even if it cost the life of M which J had
  unnaturally supported. Js bodily condition is
  capable of supporting a chance of life.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• Physical Benefit
• Re A (children) (conjoined twins surgical
  separation) (2000) 4 All E.R. 961
• Held -
• M was born without capacity of life. The
  operation would enable M die with dignity. To
  continue living would only confer pain and
  discomfort. She would die because her own body
  could not sustain her life, not because the
  operation had killed her

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• ii) Emotional Benefit
• Re Y (adult patient)(transplant bone marrow)
  (1997) Fam. 110, (1997) 35 BMLR 111
• The Facts -
• The defendant was the most suitable donor for
  her sisters a bone marrow transplant.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• ii) Emotional Benefit
• Re Y (adult patient)(transplant bone marrow)
  (1997) Fam. 110, (1997) 35 BMLR 111
• The Facts -
• However, the defendant was mentally
  handicapped and is unable to consent to the
  operation

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• ii) Emotional Benefit
• Re Y (adult patient)(transplant bone marrow)
  (1997) Fam. 110, (1997) 35 BMLR 111
• Held -
• The operation is in the defendants best
  interest. It would preserve the life of her
  sister and would improve their relationship.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• ii) Emotional Benefit
• Re Y (adult patient)(transplant bone marrow)
  (1997) Fam. 110, (1997) 35 BMLR 111
• The defendant would receive emotional,
  psychological and social benefit and suffer
  minimum detriment.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• The Facts -
• The patient was seriously injured in the
  Hillsborough disaster which reduced him in a
  persistent vegetative state.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• The Facts -
• The hospital applied for a declaration that it
  might lawfully discontinue all life-sustaining
  treatment including the termination of
  ventilation.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• Held -
• The court granted the declaration to lawfully
  discontinue all life-sustaining treatment.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• Held -
• The question is not whether it is in the
  patients best interest that he should die. It
  is whether it is in his best interest that his
  life should prolonged by artificial means

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• Held -
• The withdrawal of treatment is regarded as a
  pure omission. There was no duty to treat
  because it was not in the patients best
  interest to continue the life-prolonging
  treatment.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• Held -
• There was no prospect of the treatment
  improving the patients condition, as he was
  totally unconscious. The futility of
  treatment justifies its termination

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• Held -
• The law distinguish between cases where a
  doctor decides not to provide life- prolonging
  treatment and cases where he decides to actively
  end his patients life by administering a lethal
  drug.

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The Law Relating to Euthanasia

• What amounts to the patients best interest?
• iii) Futility of Treatment
• Airedale NHS Trust v Bland (1993) AC 789
• Held -
• Discontinuance of life support is consistent
  with a doctors duty of care. However, a
  doctors duty of care does not include the duty
  to administer lethal injections to put his
  patient out of his agony.

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• The Law Relating to
• Organ Transplant

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The Law Relating to Organ Transplant

• Organs for transplantation can come from
• i) a living person (living donor) or
• ii) a dead person (cadaveric donor)

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The Law Relating to Organ Transplant

• Living Donor
• There is presently no legislation in Malaysia
  governing the removal of organs from living
  donors.

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The Law Relating to Organ Transplant

• Living Donor
• The guide to the removal of organs from living
  donors are currently provided under the
  Guidelines for Organ Transplantation from Living
  Donor issued by the Malaysian Medical Council
  006/2006 (hereinafter referred to as the
  Guidelines)

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The Law Relating to Organ Transplant

• Living donor
• Clauses 6.1 (a) and (f) of the Guidelines
  provides that an individual willing to donate
  organ must -
• be an adult legally able to give consent
• have not receive any coercion

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The Law Relating to Organ Transplant

• Living donor
• Clause 6.6 of the Guidelines provides that -
• No financial transactions are permitted except
  payment for expenses incurred by the donor,
  payable to a third party.

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The Law Relating to Organ Transplant

• Living donor
• Therefore, it is presumed that live donations
  are legally permissible if
• a) valid consent is obtained from the donor
• b) no financial transactions are involved

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The Law Relating to Organ Transplant

• Living donor
• The Position in Singapore.
• Section 14(1) Human Organ Transplant Act (1987)
  prohibits the supply of any human organs or blood
  for any monetary transaction, and renders such
  transaction as void.

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The Law Relating to Organ Transplant

• Living donor
• The Position in Singapore.
• Section 14(2) Human Organ Transplant Act (1987)
  provides that a person who enters into such
  contracts or arrangement is guilty of an offence
  and shall be liable to a fine not exceeding
  10,000 or to imprisonment not exceeding 12
  months or both.

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The Law Relating to Organ Transplant

• Living donor
• The Position in Singapore.
• a) PP v Wang Chin Sing 2008 SGDC 268
• b) PP v Tang Wee Sung 2008 SGDC 262

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The Law Relating to Organ Transplant

• a) PP v Wang Chin Sing 2008 SGDC 268
• b)PP v Tang Wee Sung 2008 SGDC 262
• The Facts -
• Tang required a kidney transplant and engaged
  Wang to source a donor. Sulaiman was approached
  and he agreed to donate his kidney for a fee.

92
The Law Relating to Organ Transplant

• a) PP v Wang Chin Sing 2008 SGDC 268
• b)PP v Tang Wee Sung 2008 SGDC 262
• Held -
• a)Wang was sentenced to imprisonment for 14
  months on two counts of entering into
  arrangements for the supply of kidney contrary to
  S14(2) read with S14(1) Human Organ Transplant
  Act

93
The Law Relating to Organ Transplant

• a) PP v Wang Chin Sing 2008 SGDC 268
• b)PP v Tang Wee Sung 2008 SGDC 262
• Held -
• b)Tang was fined 7000 in default of 7 weeks
  imprisonment

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The Law Relating to Organ Transplant

• The Position in Singapore.
• Proposed changes-
• Foreigners who donate their organs in Singapore
  may be compensated.
• Money should not be an inducement for organ
  donations and those involved would have to adhere
  to strict ethical standards.

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The Law Relating to Organ Transplant

• The Position in Singapore.
• Health Minister Khaw Boon Wan
• Anything more than S5,000 will require more
  justification. Anything more than S10,000 is
  likely to be deemed inappropraite

96
The Law Relating to Organ Transplant

• Effect of the proposed changes-
• Donors in Singapore and from overseas can be
  reimbursed for medical costs if they donated
  their organs in Singapore

97
The Law Relating to Organ Transplant

• Cadaveric donor
• The Position in Malaysia
• Transplantation of cadaveric tissues are
  governed by the Human Tissues Act 1974 which is
  based on the Human Tissues Act 1961 in England

98
The Law Relating to Organ Transplant

• Cadaveric donor
• Section 2 of the Human Tissues Act 1974 permits
  the removal of cadaveric tissues under two
  circumstances
• i) at the express request of the donor given
  at any time in writing or stated orally during
  the donors last illness in the presence of
  two witnesses

99
The Law Relating to Organ Transplant

• Cadaveric donor
• Section 2 of the Human Tissues Act 1974 permits
  the removal of cadaveric tissues under two
  circumstances
• ii) the person lawfully in possession of the
  deceaseds body may authorize the removal of
  any part from the body if the deceased had no
  objection and the deceaseds next- of-kin
  consents

100
The Law Relating to Organ Transplant

• Cadaveric donor
• The Human Tissues Act 1974 does not ban the sale
  or purchase of organs

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• The End
• Thank you