Judicial Decision-Making in the Age of Biotechnology

Abstract

The major premise, minor premise, and conclusion of this Article are one and the same - for, they conduce to an acceptance of the fact that the social constructs and legal tools necessary for the modern judiciary to meet head-on and deal with the contentious issues of bioethics and biotechnology are already in place. To resolve problems arising from these potential quagmires, perhaps the major concern is for the courts to remain forever vigilant to the interlinking relationships or synergistic forces found in law, science, ethics, and medicine. Without vigilance and enhanced awareness of the dynamic and fluid situation here, both the bench and the bar will increasingly lack understanding of the questions to be asked, let alone the answers to be given in this New Age of Science. What is called for is a modified form of judicial activism - not grounded in the heresy of deconstruction - but rather one shaped by reason, understanding, and contemporary social policy and one that is calibrated by the scientific gatekeeping role of the federal courts. When, owing to exigencies of time, laws become largely impotent or even moribund, and new ones are not enacted because of the legislator's lethargic passivity, ignorance, or failure to release themselves from the vortex of emotionalism which enmeshes certain issues, then it remains for the courts to seize the initiative and fill the void of indecisiveness. Through interpretative policies guided by reason, common sense, equity, and analogy, the courts can chart with confidence a new common law of biotechnology - one that begins to build a framework for principled decisionmaking upon which stability and predictability can be assured. Absent this legal mechanism or process of decisionmaking, it remains for science to direct the future course of development for the new Age of Biotechnology and law to remain a reactive force. Ideally, however, a full partnership of interest and action should be sought by law, science, ethics, and medicine if progress is to be achieved over the succeeding years.