A Kentucky court was confronted with the issue of whether a court has the power to permit a kidney to be removed from an incompetent ward of the state, on petition from his mother, for the purpose of being transplanted into his brother, who is dying from kidney disease. There is no statute or prior common law decision to guide the court. What can the court do?
a. It must abstain from making a decision if there is no statute that permits the order, since courts can only interpret statutes and constitutional provisions.
b. It can decide the issue but only if the decision is unanimous, because only unanimous appellate decisions have value as precedent.
c. It must wait for the legislature to pass a statute, since common law courts do not have inherent power to determine what is the law and set precedents unless the Constitution is involved.
d. It can decide the issue relying on the public interest, tradition, justice, and morality, even if there is no common law decision or statute governing the situation.
D
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