Disclosure of medical data to relatives after the patient's death: recent legal developments with respect to relatives' entitlements in the Netherlands

In the Netherlands the physician is still bound to professional confidentiality after the patient's death. However, in the legal doctrine and in case law some exceptions have been recognized, especially for circumstances where the relatives have a legitimate interest in the inspection of medical records of the deceased. Today developments as regards the Dutch proposal to new legislation on patients' rights, notably the proposed insertion of a provision stipulating the conditions under which the relatives have a right of access to medical records of the deceased, give cause for renewed consideration of this issue related to legal protection after death. This article explores whether the proposed provision corresponds to the prevailing principles regarding disclosure of medical data after death. It is concluded that there is a need to reconsider the provision's wording or to adhere to self-regulation of the Royal Dutch Medical Association in order to strike an appropriate balance between the various interests concerned.     

Legal pragmatism and the pre-birth continuum: an absence of unifying principle

The common law has historically been clear - the rights of the unborn do not exist prior to birth. A child becomes a legal person and able to enforce legal rights upon being born alive and having a separate existence from her or his mother. This article assesses whether new developments in biomedical technologies have left this legal principle inviolate and explores what the state of law is in relation to pre-birth. It argues that there is a pre-birth continuum where the law punctuates points in a lineal timeline fashion as to when a pre-birth "non-entity" becomes a legal entity. The article concludes that there is no singular rule of law with respect to being or becoming a human but rather a collection of discrete and increasingly divergent legal categories. This recognition of a pre-birth continuum or timeline as to the legal recognition of this "non-entity" has significant ramifications for the future development of law and impacts on legal thinking about what it means to be human.     

The legal status of the fetus: an international review

The article examines the way that courts and legislatures in the United Kingdom, the United States of America, Canada and Australia have answered questions regarding the legal status of a fetus. These questions have arisen in a variety of legal situations: the article deals with succession, criminal, child protection and negligence law. The conclusion offered is that a fetus has a value and an existence that the law should recognise. This does not mean, however, that in all circumstances the law should protect the interests of the fetus. Law-makers will respond differently to claims made on behalf of a fetus, depending on the context. The fetus does not have a uniform value or character in the eyes of the law. The law makes choices as to the situations in which it will take account of actual or threatened antenatal harm.     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.     

胎儿人身利益保护的法理思考--兼论胎儿在我国未来民法典中的民事主体地位

胎儿没有民事权利能力,其人身利益一旦受到侵害,无法以民事主体身份获得法律保护.文章结合案例和学者观点,检讨了传统法律人格的缺陷,借鉴了国外及我国台湾地区胎儿保护的立法经验,认为未来民事立法应当赋予胎儿一定的民事主体地位.     

Use of the dead body in healthcare and medical training: mapping and balancing the legal rights and values

By exploring the central legal principles and issues regarding usage of the dead body in healthcare and especially in medical training, this article aims at drawing some general conclusions on the legal status of the dead body and the protection of the deceased's integrity, dignity and autonomy. The article demonstrates that the use of the cadaveric body for scientific and educational purposes involves a redrawing of the traditional boundaries between the decent and the indecent, making these acts acceptable that would otherwise be regarded as assaults on the sanctity of bodily boundaries. This is made possible by the fact that the underlying principle of dignity is not perceived to be of an absolute nature when applicable to deceased persons.     

The Legal Position of the Married and Unmarried Father Under English and Dutch Law: Sharing Parenting or Just Going Dutch?

This article addresses the issue of the legal position of the married and unmarried father under English and Dutch law. The legal position under English Law in the UK for the married and unmarried father may be familiar to English family lawyers. The situation for unmarried fathers can be seen as more 'precarious' and less legally secure than that of the married father in terms of the legal recognition of fatherhood and the exercise of parental responsibility. Fathers who are not married to the mothers of their children are not recognised as 'fathers' in law in the same way as the married father. They will possess the automatic parental responsibility that the married father has, as a result of the implementation of new legislation which acts as a 'gateway' to the effective exercise, in legal terms, of 'fathering' activities. Whilst there have been some reforms, this are set in the context of problems and difficulties in regulating unmarried relationships in general. There is disparity in legal treatment between the married and the unmarried relationship, fatherhood in particular, but this distinction shows signs of diminishing, as it has done under Dutch law. In The Netherlands, as in a lot of other European countries, family law has been subject to continual law reforms, as a consequence of social developments. Also decisions of the European Court of Human Rights have forced the Dutch government to adapt legislation. Due to the equality principle, many benefits of marriage are now also granted to unmarried people. Since the extended law reform in 1998 the terms 'legitimate' and 'illegitimate' child – for children born inside and outside of marriage – no longer exist. Instead the term 'family ties' was introduced. This article will discuss the major issues which concern the legal position of the married and the unmarried father under English and Dutch law.     

Creating Legal Space for the Unborn

This article explores how the unborn moved from inhabiting an implicit mother-centric space, tacitly expressed in the Irish constitutional order, to a separate legal space created first by the Eighth Amendment and later through public discourse, judicial interpretation and failed constitutional referenda. The article opens with a brief examination of the relationship between law and space in recent scholarly works. It goes on to assess the impact of post-colonial and gender discourse in producing the first legal space in which the unborn was tacitly understood. This is followed by an exploration of how cultural and gender rhetoric gave birth to a definite legal space in which the right to life for the unborn was protected by the Constitution and the government’s subsequent attempts to solve the legal limbo by shifting the debate to the social policy space. The paper concludes by discussing the extent to which a wider, more universal space, that of human rights discourse, may have an impact on the legal space created for the unborn, by either protecting or weakening its right to life.     

The juridical status of the fetus: a proposal for legal protection of the unborn

This article investigates the juridical status of the fetus. It assesses what this status should be in the light of recent developments in case law, legislation, medicine, and technology (particularly in vitro fertilization). The article is presented in 5 sections: Section 1 deals with the supreme court's landmark decision in Roe vs. Wade, which relied on biological stages of fetal development rather than philosophical determination of when life begins. Section 2 examines the historical reliance on birth as the point at which legal protection vests in the developing human. Section 3 compares fetuses with newborn children, identifying relevant similarities and differences. Section 4 studies whether the fetus at all stages of development should have the same protection (the author concludes they should not). Section 5 examines the practical implications of choosing viability as a developmental stage of special significance for legal protection.     

公立学校教师双重法律身份之定位及意义

教师法律身分与教师享有的权利内容及保障制度密切相关,我国大陆地区目前的相关教师法律规范对于教师的法律身分界定不甚明确,从而直接导致了教师游离于劳动法和公务员法的保护之外。本文中,笔者首先以列举教师维权中的困惑来引出教师法律身份如何定位这一课题,然后对我国台湾地区学者关于教师法律身份的不同观点进行了简要介绍,其次通过对教师的劳动者身份和公务员身份进行分析,提出了教师应为特殊劳动者兼特殊公务员的观点,最后着重阐述了定位教师的双重法律身份在立法完善及法律适用上的重大指导意义。     

论对未出生者利益的民法保护

在承认未出生者的民事权利能力的基础上,采用法定解除条件说,对于其利益的保护更为周到.未出生者权利的范围应该包括继承权、接受赠与的权利、健康权和受抚养权等.未出生者的权益受到侵害后,在其出生前,即可就其损害提起损害赔偿的请求.     

Wrongful life actions: the legal and ethical hurdles

This article discusses the various legal and ethical issues arising out of the cause of action for wrongful life. This action involves a claim by a child that but for the negligence of the doctor, hospital or other medical institution, his or her mother would have terminated the pregnancy and he or she would not have been born. The courts have generally rejected this cause of action on the basis of legal, ethical and policy considerations. The author proposes that the legal hurdles can be overcome and that the ethical and policy considerations do not outweigh the desirability of upholding wrongful life claims.     

Some recent developments in the legal relationship between parent and child

This article is based on a paper read at the Oxford Round Table Sir William Blackstone Colloquium on Public School Law in Oxford in 2000. Living and working in the 18th century, Sir William Blackstone was one of the most prominent English lawyers of all time, his influence still enduring in England and in many other countries with historical links with England. Because Blackstone regarded the relationship between parent and child as very important, the author therefore traced it through three broad periods: Blackstone's own times, South Africa before 1994 and South Africa after 1994. In preparing the paper, the author realised that many changes had taken place in the legal relationship between parent and child in South Africa since 1994 and that their implications for education management need to be explored. Education law literature in South Africa is certainly still largely dominated by the law as it was before 1994; so are the management implications drawn from it. The article has four sections: first, aspects of the parent-child relationship in South African law before the new Constitutional dispensation; second, relevant developments in South African under the new Constitution(s) and finally, a conclusion.     

Child Protection Law as an Independent Variable

Child protection professionals work in a multidisciplinary system in which the law and the family court play central roles and which collects an increasing amount of data. Yet we know little about what impact the law has on whether a child is removed by child protective services, is deemed neglected by a family court, or reunifies with a parent. Do state‐to‐state variations in child protection laws, or changes by individual states to their laws, lead to different outcomes for children and families? The dramatic variations in child welfare practice from one state to another suggest that legal variations do matter. Yet empirical research on these questions is scarce both because we collect too little data to measure all such issues, and, because we have failed to study the data we do have. This article is a plea for researchers to rectify that problem and for policymakers to improve data collection. Doing so would facilitate a more clear understanding of the law's effect on child protection outcomes and aid policymakers and advocates in identifying both promising and problematic practices and legal reforms.     

Potential legal protection problems in the use of compulsory commitment in mental health care in Norway

Compulsory commitment in mental health care represents a dramatic infringement on an individual's life. In Norway, this deprivation of liberty is based on a professional medical assessment that does not require a court verdict. This article presents possible changes that may increase legal protection for the mentally ill. The concept of legal protection has at least two definitions: the state's protection of the individual's legal rights (including the right to health care) and the protection afforded to citizens from abuse and arbitrary actions by the state. Infringements on personal liberty without consent require such legal authority as is found in the Human Rights Conventions. These Conventions have precedence over national laws. Norwegian legislation is based on confidence in psychiatry as a profession. This confidence allows professionals to treat patients against their will. In some countries, initial court action is necessary before compulsory mental health care can be implemented. This should also be possible in Norway in most cases, with the exception of life-threatening situations.     

The mandatory notification of data breaches: Issues arising for Australian and EU legal developments

Public and private sector organisations are now able to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other jurisdictions. This article reviews US, Australian and EU legal developments regarding the mandatory notification of data breaches. The authors highlight areas of concern based on the extant US experience that require further consideration in Australia and in the EU.     

Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society

This article examines legal and social discourses surrounding the phenomenon of child pornography, considering the legal responses to child pornography (particularly when an individual is found to be in possession of such material), and the way in which such material, the child, and the possessor of child pornography are socially constructed.
The article raises the question of whether there has been a moral panic regarding child pornography and the possession of such material, but also considers whether there are real reasons to consider that the possession of child pornography should remain illegal. Research studies which aim to establish the existence of a causal link between possessing child pornography and the act of committing child sexual abuse are examined, as is the argument that criminalizing the possession of child pornography reduces the market for such material. Finally, there is an analysis of the possible impact of social constructions of the child as innocent.     

An international legal framework for data protection: Issues and prospects

The processing of personal data across national borders by both governments and the private sector has increased exponentially in recent years, as has the need for legal protections for personal data. This article examines calls for a global legal framework for data protection, and in particular suggestions that have been made in this regard by the International Law Commission and various national data protection authorities. It first examines the scope of a potential legal framework, and proceeds to analyze the status of data protection in international law. The article then considers the various options through which an international framework could be enacted, before drawing some conclusions about the form and scope such a framework could take, the institutions that could coordinate the work on it, and whether the time is ripe for a multinational convention on data protection.     

The fetus as a patient: emerging rights as a person?

Dramatic scientific breakthroughs in medical technology have revolutionized the physician's diagnostic prowess in the art of obstetrics. Scientific procedures now reveal previously undetectable secrets about the womb's tiny inhabitants. In the last few years, perinatologists have not only demonstrated the ability to discern fetal abnormalities of an extraordinary variety, but also have become increasingly successful in correcting many of these defects in utero. This article identifies the potential medicolegal conflicts that may arise as fetal surgery becomes an accepted medical practice. It begins by surveying the legal rights of unborn persons with a particular emphasis on the role of viability in determining those rights. The article will then examine the concept of viability as developed by the Supreme Court in Roe v. Wade and later abortion decisions and concludes that the current judicial deference to the medical community in determining viability is adequate for balancing rights in the abortion context. However, conflicts among physicians and between the other and her unborn child that may arise in the fetal surgery context suggest that viability may be an adequate benchmark for resolving such conflicts. The article concludes with a recommendation to reform the current method of resolving the critical question of when a fetus becomes viable.     

Is there only One Correct Legal Answer to a Question of Fact? Three Talmudic Answers to a Jurisprudential Dilemma

This article focuses on questions of pure fact‐of‐the‐matter and asks whether two omniscient judges (or jurists or scholars) may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact.