Archive for the ‘Bioethics’ Category

Health care systems kill people. So what?

posted by Nate Oman

As the debate over health care reform slogs on, a particular kind of argument has become quite familiar.  It goes something like this:

Health care system X is a bad system because it kills people.

In support of this assertion, we are then treated to a set of anecdotes about how this or that person died as a result of this or that health care system break down.  Hence, we see critics of Obama’s proposals trotting out horror stories about how NHS bureaucracy resulted in the death of this or that Briton’s loved ones.  Likewise, we see supporters of health care reform unearthing heartbreaking stories of how the American patchwork of private insurance and Medicare or Medicaid killed off dad or mom.  My question is, “So what?” Read the rest of this post »

  September 15, 2009 at 7:48 am   Posted in: Bioethics, Health Law, Tort Law   Print This Post   3 Comments

Health Tech: CNET Shadows The Economist

posted by Deven Desai

Teaching Information Privacy is simply fantastic. The law and issues force students to consider torts, contracts, criminal procedure, constitutional law, and more. The health and genetic privacy material alone could easily be a course unto itself. Health care has been a major policy matter for more than a decade, and yet, it has not suffered the usual let’s move on to the next hot topic pattern that specific health matters such as HIV/AIDS and more recently H1N1. One area that is coming is so-called e-health. CNET is hosting a three day series on “Your e-health future.” The series looks at digital health records, Microsoft and Google’s forays into the sector, some fundamentals about e-health, stimulus, and so on. I plan on reading the different parts but based on the bits I’ve scanned, it is a little thin. In contrast, The Economist’s special report “Medicine Goes Digital” from April was stimulating and informative. I highly recommend the series of articles. The basic premise, “The convergence of biology and engineering is turning health care into an information industry,” relates to something I have been working on for a while: the way in which the merging of humans and machines (some call this possibility the singularity) poses problems that relate to intellectual property and privacy in much the same way being online did and continues to pose problems. These changes are coming. The question, and my hope, is that for once the law will be ahead of the curve as technology foments a fundamental change in the way we live.

Image: “Fieldbook of medicine (1517). Treatment of a skull injury. Wood cut work attributed to Hans Wechtlin.”
Source: Wikicommons

License: Public Domain

  May 19, 2009 at 9:47 pm   Posted in: Bioethics, Health Law, Privacy, Privacy (Medical)   Print This Post   One Comment

What’s in a Name, Part 2: Consider “half-siblings”

posted by Naomi Cahn

Ryan Kramer graduated from Colorado University’s aerospace engineering program on Friday, a program that is so tough that only about 50% of those who begin ultimately finish it.  Before he starts his master’s degree in engineering management  at USC this fall, one of his big summer plans is to meet two of his half-siblings; he has at least five others.

I’ve met Ryan once, and was incredibly impressed with him – I’m not surprised that he was able to complete his competitive college program nor that he is seeking out half-siblings and the man who anonymously provided the sperm that enabled Ryan to exist.  Ryan and I met at a conference on establishing a national donor gamete databank. Ryan and his mother, Wendy Kramer, have started the enormously successful Donor Sibling Registry, which is now responsible for connecting more than 6000 people with others who share some of the same genetic origins (disclosure: I have just become a board member of the DSR).

Donor-conceived offspring often – although not always – regret their lack of connection with their entire biological heritage. They want to know more about the often anonymous individual[s] who helped create them. As the secrecy around using “donor” sperm and eggs dissolves – in the past, parents frequently did not tell their children that they had been created by donor gametes — offspring and their parents are increasingly trying to get additional information and are advocating for disclosure of “donor” identities. Many have begun to use the internet to create an extended family that includes others who have used the same donor. Almost 150,000 people visited the DSR website in 2008, and more than 24,000 people have registered on it. It maintains an extremely active blog and message group.

The language in the donor world shows how these families are constructed. Offspring who share the same donor are typically labelled “half-siblings.  “Accidental incest” is a concern.   The word “donor” is itself a misnomer; gametes are typically sold rather than provided altrustically.   Read the rest of this post »

  May 10, 2009 at 2:30 pm   Posted in: Bioethics, Family Law, Feminism and Gender   Print This Post   2 Comments

What’s in a Name? Consider “Embryos”

posted by Naomi Cahn

Dan first asked me to blog a few months ago, around the time my book, Test Tube Families: Why the Fertility Market Needs Legal Regulation, was hitting the market. Since then, we’ve had Nadya Suleman’s octuplets, President Obama’s lifting of the federal stem cell research ban (although this may only apply to embryos resulting from fertility efforts), and proposed new legislation in Georgia that would allow for embryos to be “adopted.” These events in reproductive technology are neither as newsworthy nor as profoundly disturbing as the torture memos or bailing out Wall Street — or, potentially, as swine flu. They are, nonetheless, critical to the cultural conflict over abortion, family formation, and gender roles.

Consider the proposed Georgia law, and almost copycat-like, legislation in Tennesse. The “Option of Adoption Act” is a Georgia bill that is now sitting on the desk of Ga.. Governor Sonny Perdue. This is the same Republican governor who filed his own brief in Northwest Austin Municipal Utility District v. Holder (the Voting Rights Case that the Supreme Court heard last week), arguing – among other things — that electing a black president indicates no further need for the type of scrutiny Georgia receives under Section 5; the Georgia attorney general had, apparently, refused to file such a brief. Anyway, the Option of Adoption Act, which was introduced in the Georgia legislature by an anti-abortion state representative, sets out methods through which people who create an embryo (when someone undergoes a cycle of in vitro fertilization, there are often embryos left over that ) can donate any leftovers to someone else. There may be up to half a million frozen embryos in the United States, although many of them are incapable of becoming viable fetuses. In Georgia, if the legislation becomes law, the recipients of any embryo transfer can then choose to petition a court for recognition that they are the legal parents of any child born to them.

.One of the bill’s advocates, Daniel Becker, the President of Georgia Right to Life, trumpeted that, “’This bill is monumental in that it establishes the adoption of embryos as children for adoption purposes.’” Indeed, there have even been claims that an embryo exchange should be the basis for eligibility under the federal adoption tax credit. As Sarah Lawsky and I painstaking show in Embryo Exchanges and Adoption Tax Credits, use of someone else’s embryo is not an adoption. Calling embryos “children” is problematic for a number of reasons.

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  May 4, 2009 at 7:00 am   Posted in: Bioethics, Family Law, Feminism and Gender   Print This Post   8 Comments

Neurocosmetics as Faulty Data

posted by Frank Pasquale

Edge, a fascinating online salon/magazine, asked 151 luminaries “What Will Change Everything“? I’ve picked through the 107,000 words of responses over the past few weeks; many are thought-provoking.

For example, Marcel Kinsborne predicts a growing market for “neurocosmetics” which translate the benefits of cosmetic surgery to the social world:

[D]eep brain stimulation will be used to modify personality so as to optimize professional and social opportunity, within my lifetime. Ethicists will deplore this, and so they should. But it will happen nonetheless, and it will change how humans experience the world and how they relate to each other in as yet unimagined ways. . . . We read so much into a face — but what if it is not the person’s “real” face? Does anyone care, or even remember the previous appearance? So it will be with neurocosmetics.

Consider an arms race in affability, a competition based not on concealing real feelings, but on feelings engineered to be real. Consider a society of homogenized good will, making regular visits to [a] provider who advertises superior electrode placement? Switching a personality on and then off, when it becomes boring? . . .

We take ourselves to be durable minds in stable bodies. But this reassuring self-concept will turn out to be yet another of our so human egocentric delusions. Do we, strictly speaking, own stable identities? When it sinks in that the continuity of our experience of the world and our self is at the whim of an electrical current, then our fantasies of permanence will have yielded to the reality of our fragile and ephemeral identities.

It’s one thing to read these imaginings in the fiction of a Houllebecq, Franzen, or Foster Wallace; it’s quite another to see them predicted by a Professor of Psychology at the New School for Social Research. I have also predicted an arms race in the use of personality optimizing drugs, but I believe such an arms race would defeat, rather than reveal, humanity’s true nature. My difference with Kinsborne suggests a technophilic bias at the heart of Edge’s inquiry: an implicit belief that certain technologies will inevitably change us, rather than being changed or stopped by us.

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  January 24, 2009 at 11:03 pm   Posted in: Bioethics   Print This Post   2 Comments

Towards Responsible Use of Cognition-Dulling Drugs

posted by Frank Pasquale

In a recent editorial in Nature entitled Towards responsible use of cognitive-enhancing drugs by the healthy, distinguished contributors have endorsed a “presumption that mentally competent adults should be able to engage in cognitive enhancement using drugs.” Against various Luddites who worry about the rat races such drug use could spark, the editorialists argue that cognitive enhancement is here to stay: “From assembly line workers to surgeons, many different kinds of employee may benefit from enhancement and want access to it, yet they may also need protection from the pressure to enhance.” Instead of the regulation encouraged by Francis Fukuyama, they would have us rely on robust professional standards to guide “appropriate prescribing of cognitive enhancers.”

The most promising aspect of the editorial is the thin and unspecified concept of enhancement that it endorses. As Carl Elliott notes, relentless focus on well-defined tasks can offer a real competitive edge in today’s economy:

Employees who cannot rely on job security often feel as if they are constantly required to prove their value to their employers. Many of these same employees spend most of their time sitting in front of a computer screen performing repetitive tasks that require sustained attention and concentration.

Of course, many in this group may experience moments of imagination or reverie positively, as exemplary thought rather than distracting consolation. For those individuals, the next goal of an autonomy-enhancing bioethics should be the development and widespread use of cognition-dulling drugs, which serve to blot out all awareness except of the task at hand. Cures for resentment, envy, or union-organizing may also serve to enhance workplace efficiency.

Bioconservatives may fear that cognition-dulling drugs presage a Brave New World–particularly Aldous Huxley’s futuristic vision of certain fetuses being routinely exposed to alcohol in order to ease their acceptance of low-caste membership. They tend to forget Huxley’s counter-image of a progressively technologized paradise, in Island, which “answers the authoritarian monoculture of Brave New World point by point”:

Biotechnology is present, but as a kind of ecologically wise agricultural system. . . . The nuclear family has been abolished . . . but only to increase human attachment among all its inhabitants . . . The novel . . . ends, exactly as it began, with the island’s mynah birds repeating the mantra they have been trained to mimic over and over again: “Attention.”

Like the happy inhabitants of Huxley’s Island, both cognition-enhancers and cognition-dullers can work together peaceably in a mutualism that discourages conflict.

Fortunately, the Nature editorialists appear in principle open to cognition-dulling methods, endorsing a nuanced and contextualized response:

Appropriate policy should prohibit coercion except in specific circumstances for specific occupations, justified by substantial gains in safety. It should also discourage indirect coercion. Employers, schools or governments should not generally require the use of cognitive enhancements. If particular enhancements are shown to be sufficiently safe and effective, this position might be revisited for those interventions.

The key then is to carefully consider how best to develop a pharmacopeia that safely and effectively cures tendencies to insubordination, daydreaming, dissatisfaction, and other inefficient habits.

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  January 4, 2009 at 10:22 am   Posted in: Bioethics   Print This Post   2 Comments

Surgical Strike on Social Suffering

posted by Frank Pasquale

The recent face transplant at the Cleveland Clinic raises some fascinating issues about the nature of personal identity and cutting edge medicine. A failing face transplant might create agonizing medical problems for the recipient, leading some to suggest that death-accelerating drugs should be available in that case. Current organ donation cards do not specify whether they authorize a face donation. The family of the face donor might find the transplant recipient’s new face uncannily like that of the relative they recently lost. Finally, there is the question of the cruelty of a society that made the transplant so pressing in the first place:

She “was called names and was humiliated,” Siemionow [the doctor who led the transplantation team] told reporters yesterday. . . . Eric Kodish, the Cleveland Clinic’s chief ethicist, added, “Human beings are inherently social creatures. A person who has sustained trauma or other devastation to the face is generally isolated and suffers tremendously.” He concluded: “The relief of suffering is at the core of medical ethics and provides abundant moral justification for this procedure.”

Yes, suffering cries out for relief. But when the suffering is social and the relief is surgical, where are we going? We’re drifting from a standard of necessity rooted in you to a standard—”socially crippled”—that’s dictated by others. And instead of changing them, we’re changing and endangering you. The Cleveland doctors say their patient consented freely. They asked her, for example, whether it was she or her family who wanted the transplant. But how free can your choice be when the reason you want it is to escape humiliation?

As Will Saletan concludes, “I feel for the Cleveland patient. I hope her new face ends her suffering. I just don’t want to end up killing her—and calling that her choice—because we made her life hell.”

As the cosmetic surgery boom abates in South Korea, it’s important to think of all the smaller ways in which competitive pressures and fear of lesser humiliations drive demand for these procedures. The greater the humiliation in store for the unattractive, the more this “luxury” becomes a necessity.

  January 4, 2009 at 8:44 am   Posted in: Bioethics   Print This Post   2 Comments

Evolutionary Pressures on Minds and Bodies

posted by Frank Pasquale

Corpus 2.0, a recent design project on potential human bodily evolution, has been spreading around the web. One model with a shoulder bump finds it much easier to keep her handbag steady. Other forms of “progress” include a “ridge in the nose developed for wearing glasses, ears moulded to accommodate earphones, a thumb with an extra joint for sending SMS messages more efficiently and a foot adapted to create the same posture as wearing high heels.” This work struck me as a less critical version of the “future farms” and other body modifications both proposed and ridiculed at the “Design and the Elastic Mind” show at MOMA earlier this year.

While many find these particular modifications to bodily form grotesque, opposition to unfortunate evolutionary pressures on attitudes and mental habits strikes me as much less developed. That’s one reason I cautioned against runaway “cognitive enhancements” in an article last year. The founder of Better Living Through Chemistry predicts that we should be happy to choose “average hedonic set point[s] of our children. . . . [so that] allelic combinations . . . .that leave their bearers predisposed to unpleasant states of consciousness . . . will be weeded out of the gene pool. . . [leading to] some form of paradise-engineering.” Following Walker Percy, I think such people are actually quite useful to a world too prone to “irrational exuberance”–even if introversion is maladaptive for the introvert himself.

  October 27, 2008 at 9:12 pm   Posted in: Bioethics, Law and Inequality, Technology, Weird   Print This Post   2 Comments

The Retreat of the Real

posted by Frank Pasquale

The rise of digitized images has led many journalists to worry about credentializing any photo that comes their way. That skepticism is starting to spread:

Bloggers, who had already appointed themselves watchdogs over reporters, editors and producers, were now taking on photographers. While the goal of increased transparency in the media is laudable, it may foster greater cynicism about journalistic ethics. “Photographers were always able to manipulate pictures in the darkroom,” says Keith Morrison, a former Calgary Herald photographer who is now publisher of C-ing Magazine, a publication about photojournalism. “But now, as the public gains awareness of digital photography and Photoshop, they have stopped trusting the pictures in newspapers and magazines.”

It’s part of a larger cultural malaise about “what’s real:”

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  August 24, 2008 at 8:16 am   Posted in: Bioethics   Print This Post   4 Comments

Sleepless in Science Fiction

posted by Frank Pasquale

There is an interesting collection of articles on transhumanism this month in a publication called The Global Spiral. Jean-Pierre Dupuy’s article Cybernetics is an Anti-Humanism sets the stage for the discussion:

In recent years, the enterprise of “making life from scratch” has been organized as a formal scientific discipline under the seemingly innocuous name of synthetic biology. In June 2007, the occasion of the first Kavli Futures Symposium at the University of Greenland in Ilulissat, leading researchers from around the world gathered to announce the convergence of work in synthetic biology and nanotechnology and to take stock of the most recent advances in the manufacture of artificial cells. Their call for a global effort to promote “the construction or redesign of biological systems components that do not naturally exist” evoked memories of the statement that was issued in Asilomar, California more than thirty years earlier, in 1975, by the pioneers of biotechnology. Like their predecessors, the founders of synthetic biology insisted not only on the splendid things they were poised to achieve, but also on the dangers that might flow from them. Accordingly, they invited society to prepare itself for the consequences, while laying down rules of ethical conduct for themselves. We know what became of the charter drawn up at Asilomar. A few years later, this attempt by scientists to regulate their own research had fallen to pieces. The dynamics of technological advance and the greed of the marketplace refused to suffer any limitation.

Count me as unsurprised–”self-regulation” is all too often a euphemism for no regulation at all. Given Dupuy’s observations of the mutual reinforcement of market and technological forces, I found Katherine Hayles’s treatment of a science fiction novel on genetic enhancement particularly interesting:

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  June 17, 2008 at 5:52 pm   Posted in: Bioethics   Print This Post   One Comment

“Don’t Resist Until It’s Too Late”

posted by Frank Pasquale

The debate on cognitive enhancement has reached BoingBoing and the NYT. I’ve been skeptical of the topic before, and this snippet from Benedict Carey’s article gave me little reason to change my mind:

Dr. Anjan Chatterjee, an associate professor of neurology at the University of Pennsylvania who foresaw this debate in a 2004 paper, argues that the history of cosmetic surgery — scorned initially as vain and unnatural but now mainstream as a form of self-improvement — is a guide to predicting the trajectory of cosmetic neurology, as he calls it. . . .

The public backlash against brain-enhancement, if it comes, may hit home only after the practice becomes mainstream, Dr. Chatterjee suggested. “You can imagine a scenario in the future, when you’re applying for a job, and the employer says, ‘Sure, you’ve got the talent for this, but we require you to take Adderall.’ Now, maybe you do start to care about the ethical implications.”

On this line of thought, in the early stages of the development of enhancement technology, it’s untoward to object to its deployment because it’s rare. One person’s use of the drug doesn’t appear to harm anyone directly. But by the time the “Adderall requirement” arises, the drug is so common that it’s likely futile to resist the requirement to take it. It’s the old “boiled frog” syndrome.

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  March 10, 2008 at 12:01 am   Posted in: Bioethics   Print This Post   2 Comments

The Culture of Cosmetic Surgery Reaches Iran

posted by Frank Pasquale

Mehrdad Oskouei’s documentary “Nose Iranian Style” offers a fascinating (if depressing) look at the rhinoplasty capital of the world: Iran. Here’s the summary:

A large and growing percentage of . . . people in Iran [about 60-70,000 per year] . . . have their noses made smaller through rhinoplasty, even young Moslem women who hide most of their faces with traditional scarves. Filmmaker Mehrdad Oskouei explores this phenomenon [by interviewing] a number of teens who have either had the operation or are considering it, the parents to give their blessings to this practice (and their money to the plastic surgeon), and trends in Middle Eastern culture which may be contributing to this wave of new noses.

The film starts with a group of girls cheering upon hearing that Iran is “nose job” capital of the world, and a series of uncomfortable (if illuminating) encounters and montages follow. News reports have tracked the trend for a while, but the film does an extraordinary job juxtaposing the pre- and post-modern aspects of contemporary Iranian life that contribute to the pressure to abrade, upturn, and minimize noses. Though some religious authorities oppose the trend, they appear feckless throughout the film. (One plastic surgeon states that “Plastic surgery is better appearance for people, and I think God [would] like this.”) A few more thoughts on the comparative role of law and norms in addressing the rise of the rhinoplasties below.

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  March 4, 2008 at 6:04 pm   Posted in: Bioethics, Health Law   Print This Post   One Comment

“The Notion that We Should All Look the Same is Hatred”

posted by Frank Pasquale

So argued Marilynn Wann (author of Fat?So!) in response to a recent bill introduced in the Mississippi legislature to ban the obese from being served in “any food establishment that is required to obtain a permit from the State Department of Health . . . that 12 operates primarily in an enclosed facility and that has five (5) or more seats for customers.” Wann believed that Miss. House Bill 282 would amount to size discrimination.

I find the bill bizarre–less a constructive solution than an effort to stigmatize. Kelly Hills offers some measured commentary on the anti-obesity push generally:

[Some of the obese] are comfortable with their weight, and don’t appreciate being “bullied” by society to adhere to an ideal they don’t believe is accurate. These folks often espouse the motto “healthy regardless of weight”, placing an emphasis on health outside of weight. After all, the reasoning goes, if someone is 65 lbs overweight, but perfectly healthy otherwise, what business is it of anyone just what that weight is? People come in all sizes, and as long as the individual is healthy, what that size is shouldn’t matter to anyone.

The anti-obesity movement has to be predicated on a “duty to be healthy“–and some would say that focus on the individual itself is a controversial priority of health reform, given that there is so much that can be done to change social structures that would lead to better health outcomes. As Michael Pollan has noted, changes to the farm bill could probably do more to improve America’s eating habits than individual stigmatization. The context of food choices–not cultivation of willpower–is key.

Hat Tip: Medical Humanities Blog.

  February 11, 2008 at 10:13 am   Posted in: Bioethics, Health Law   Print This Post   4 Comments

Police on Steroids, Profs on Ritalin

posted by Frank Pasquale

There has been some excellent blawgospheric comment on the Mitchell Report, a Black Sox scandal for our age (see, e.g., Jeff Lipshaw, Howard Wasserman, Michael Dimino and Alfred Yen). My question is: what will be the cultural impact? I think two recent stories on performance enhancement in other fields provide some clues, and suggest the wisdom of the PCBE’s worries.

First, the Village Voice has a long story on some possibly inappropriate steroid/HGH use in the NYPD. I say “possibly” for two reasons: 1) the slippery “therapy/enhancement” distinction here and 2) the threat posed by bulked up criminals. The Voice reports that “the Brooklyn District Attorney’s Office knows of 29 cops and at least 10 NYPD civilian employees—all well under the age of 60—who have received prescriptions for [steroids for] hypogonadism.” Doctors quoted in the story find it implausible that so many officers would have this disorder–but there are probably other physicians who have a much broader concept of disease. And if suspects are bulking up on illegal substances, who can blame the cops for trying to catch up?

The other story is on concentration-enhancing drugs increasingly used not only by students (an old problem), but now by professors. Andrew Sullivan asks, “So if a prof wants to do a little Provigil, it’s no worry for me. Why should it be a worry for anyone but the prof himself?” I think there are several reasons, not least the potential for medicalized competition to invade spheres of life we now deem constitutive of our identity. But for now let me just focus on how the police and profs examples intersect.

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  December 21, 2007 at 8:05 pm   Posted in: Bioethics, Culture, Current Events, Law and Inequality, Law and Psychology   Print This Post   One Comment

The Worst Self-Justifying Column You’ll Ever Read

posted by Dave Hoffman

Is here. Romana: immediately contact your divorce lawyers! (I hope she retained the copyright on her illustrations.) Seriously, though, is anyone meant to be convinced by silly arguments like these?

“From a Darwinian perspective, sexual jealousy is easily understood. Natural selection of our wild ancestors plausibly favored males who guarded their mates for fear of squandering economic resources on other men’s children. On the female side, it is harder to make a Darwinian case for the sort of vindictive jealousy . . . No doubt hindsight could do it, but I want to make a different point. Sexual jealousy may in some Darwinian sense accord with nature, but “Nature, Mr. Allnutt, is what we are put in this world to rise above.” Just as we rise above nature when we spend time writing a book or a symphony rather than devoting our time to sowing our selfish genes and fighting our rivals, so mightn’t we rise above nature when tempted by the vice of sexual jealousy? I, for one, feel drawn to the idea that there is something noble and virtuous in rising above naturein this way. I admit that I have, at times in my life, been jealous, but it is one of the things I now regret. Assuming that such practical matters as sexually transmitted diseases and the paternity of children can be sorted out (and nowadays DNA testing will clinch that for you if you are sufficiently suspicious, which I am not), what, actually, is wrong with loving more than one person? Why should you deny your loved one the pleasure of sexual encounters with others, if he or she is that way inclined? The British writer Julie Burchill is not somebody I usually quote . . . but I was struck by one of her remarks. I can’t find the exact quote, but it was to the effect that, however much you love your mate (of either sex in the case of the bisexual Burchill) sex with a stranger is almost always more exciting, purely because it is a stranger. An exaggeration, no doubt, but the same grain of truth lurks in Woody Allen’s “Sex without love is an empty experience, but as empty experiences go it’s one of the best.”"

Ladies and Gentlemen, meet biology’s version of Richard Posner, minus any sense of how people actually think or act. What’s the argument here? That jealousy is a legitimate emotion because it is genetically based (for men, but not for women) or that regardless of the Darwinian pull, it is something that women should must now rise above, because Dawkins wants to step out?

(Image Source: A japanese couple being shamed for adultery, wikicommons).

  December 5, 2007 at 9:23 am   Posted in: Bioethics   Print This Post   15 Comments

Stem Cell Research and the Presidential Race

posted by Russell Korobkin

Thanks to Dan and Frank for inviting to blog about my new book, Stem Cell Century: Law and Politics for a Breakthrough Technology. The book analyzes a broad range of issues related to stem cell research and regenerative medicine. Only one chapter out of 10 (“The Embryo Wars”) considers the debate over the ethics of conducting research that requires the destruction of human embryos and the Bush policy of severely limiting federal funding of research on stem cell lines derived from embryos. But the announcement, two weeks ago, that two teams of scientists have succeeded in reprogramming adult cells to behave like embryonic stem cells has the potential to open a new chapter of the embryo wars that will play out in the presidential campaign.

Two weeks ago, it seemed pretty clear that embryonic stem cell research was a wedge issue that the Democrats would exploit in the 2008 election. All of the Democratic candidates not only favor federal funding of research on stem cell lines derived from embryos, they are quick to point out their position and criticize Presiden’t Bush’s funding restrictions. Most Americans, including most Democrats, most independents, and perhaps half of Republicans, support the research. The Republican candidates, on the other hand, tend to downplay the issue, whether they appear to support the research (McCain, Giuliani) or oppose it (Thompson, Romney–although the latter has changed his position, as he has on many issues, since he was the governor of Massachusetts), because the issue tends to split religious conservatives and economic conservatives.

The cell reprogramming success has not weakened the commitment to embryonic stem cell research of most members of the scientific community, because it is too early to tell whether the new cells – called induced pluripotent stem cells – will actually be as useful as embryonic stem cells, and because the new cells are made by inserting genes (which can cause cancer) with retroviruses (which can cause cancer). Not only does this mean that the IPS cells could not be used to create treatments that would be injected into humans (a long-term goal of stem cell research), it also suggests that they might not serve as good models of diseases for the more immediate goals of stem cell research: studying how degenerative conditions develop and creating large quantities of diseased cells in order to more efficiently screen chemical compounds that might be effective as treatments. Some prominent scientists believe the drawbacks of IPS cells at the current time are likely to be overcome; others think they are not.

The average American swing voter might not see things quite this way, however. Many people who favor embryonic stem cell research find the destruction of early-stage embryos troubling but justified by the potential medical benefits. Voters in this group might think that the creation of IPS cells has changed the cost-benefit analysis. A number of conservative commentators have already argued aggressively that the IPS discovery vindicates the Bush funding policy and shows that neither medical research nor ethics need to be compromised, and the Romney campaign issued a press release saying essentially the same thing. Meanwhile, all the pro-research candidates – Democrats and Republicans – have been noticeably silent the issue since the IPS announcement. I haven’t seen a statement or comment by any of them (if any readers have, please let me know). My guess is they are waiting to see polls that show whether the majority of Americans still favor embryo research. For the first time since 2001, the pro-research side is now on the defensive.

  December 3, 2007 at 10:19 am   Posted in: Bioethics, Health Law, Politics   Print This Post   One Comment

Are Survivors’ Costs a Pro-Life Issue?

posted by Frank Pasquale

The conservative Manhattan Institute recently commissioned a study of a gap in life-expectancy gains over the past 20 years. The data that inspired the study are startling:

While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions — the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) — led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins.

To make a long story short, the researcher found that found that “longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.”

Unfortunately, budgetary rules often make the federal government concentrate more on the costs of such interventions than their benefits. For example, the CBO counts “increased costs to the Medicare program for extending the life of its beneficiaries” as “survivors’ costs.” Tim Westmoreland’s fascinating article on the topic (95 Georgetown L.J. 1555, June 2007) calls this “euthanasia by budget:”

In describing why its model included costs but no savings from new access to pharmaceuticals, the Congressional Budget Office said, inter alia, “ [T]o the extent that a drug benefit helps people live longer, they may consume more health care over their remaining lifetime than they would have without the benefit.” In other words, it is still cheaper for Medicare beneficiaries to die.

One wonders if the same reasoning was behind a Texas law that permitted hospital authorities to cut off life support to a conscious woman.

I admit that Daniel Callahan has eloquently questioned the “research imperative,” and perhaps his reasoning could be extended to health care more generally. But it strikes me that in our accounting the costs and benefits of health care in this country, budgetary savings arising out of early death ought to be suspect.

  July 11, 2007 at 12:00 pm   Posted in: Bioethics, Economic Analysis of Law, Empirical Analysis of Law, Health Law, Intellectual Property, Law and Inequality, Legal Theory, Philosophy of Social Science, Technology   Print This Post   4 Comments

Vanity Taxes vs. Worthless Competitions

posted by Frank Pasquale

New Jersey adopted a “vanity tax” in 2004, levied on “any medical procedure performed on [an] individual which is directed at improving [his/her] appearance and which does not meaningfully promote the proper function of the body or prevent or treat illness or disease.” In a critique of the tax, Michael Duel argues that it is sexist and such surgery is frequently nondiscretionary:

Women can either feel inferior, enjoy a lower quality of life, and be rejected by mainstream society, or else suffer the pain and toil of cosmetic surgery to achieve the exact same ideals society uses to reject them.

Cosmetic surgeons have also railed against the tax, unctuously declaiming that it “discriminates against women” because they buy about 86% of the procedures.

NOW President Kim Gandy has a nice response to that canard:

In general, I’m opposed to most things that impact women disproportionately, but disproportionate use isn’t a good measure if a tax is unfair or not. I can’t imagine someone arguing against having a luxury tax on yachts because more of them are bought by men.

State Senator Karen Keiser is uppping the redistributive ante in Washington state, with a plan to earmark vanity tax revenue for health insurance for poor children. As one tax policy analyst claims, “In this anti-tax climate, these user-based, selective tax proposals are more palatable than broader ones.”

Duel also attacks the vanity tax as a matter of tax policy, but I have a feeling he misses its point. . .

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  June 6, 2007 at 1:39 pm   Posted in: Behavioral Law and Economics, Bioethics, Current Events, Feminism and Gender, Health Law, Philosophy of Social Science, Privacy (Medical), Tax   Print This Post   3 Comments

Limits of Performance Enhancement

posted by Frank Pasquale

Imagine it’s 2020, you’ve begun working at a firm, and you’re having trouble keeping up. All the other employees are working 75 hours a week, take no vacations, and seem both alert and happy all the time. You ask some confidantes there “how do you do it?” All mention some variety of cognitive enhancement: one takes modafinil to concentrate, another uses chemicals that were originally designed for fighter pilots. Do you take the pills to keep up?

That was one of a few hypos posed yesterday during a presentation I made to the Yale Information Society Project. Though I thought the problematic nature of that situation pretty intuitive, I got pushed to specify exactly what was wrong. So here are some ideas, from different perspectives:

1) Safety: What if the drug shortens lifespan? Surely that’s a problem that would make this scenario pretty analogous to steroids in sports. I hope no one seriously thinks that we want to allow athletes to risk terrible consequences in the future to compete better today. I also think that even a small increase in risk to health ought to render the “super worker” pills problematic. . . . though I admit it’s hard to specify how much. Shortening life expectancy by a month? a year? 10 years? I’ll admit that the choice between those options is an inevitably ideological one.

But let’s assume for now these pills are as safe as caffeine. What’s the harm then? Four takes below the fold…

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  May 10, 2007 at 12:36 pm   Posted in: Bioethics, Intellectual Property, Law and Humanities, Legal Theory, Philosophy of Social Science, Politics   Print This Post   6 Comments