Westworld and Bioethics

[WARNING: Spoilers below]

On Sunday, HBO’s Westworld finished its run. Though I thought some of the early episodes were arguably a bit of a failure as television (and my partner almost jumped off the bandwagon of making this one of “our shows”) IMHO the show finished very strong.

But whatever you thought of it as television, the show is wildly successful at raising a series of bioethics issues. There have been a bunch of other very good treatments of some of these issues in the last couple of decades – A.I., Ex Machina, Humans, Battlestar Galactica all come to mind – that touch on some of these issues. But, what I loved about Westworld is its lack of direct moralizing on these subjects, and how it leaves the viewer puzzling through them in a much more naturalistic way: I have been thrust in this unfamiliar world, and now I am trying to use my ethical compass to get my bearings.

Once upon a time I discussed Bioethics and the Martian, and my aim is to do the same here. I thought one way to share why I think the show is so successful as a text for bioethics exploration was to develop a “mock exam question” on the subject. This is really written more like an oral exam, with follow-up questions. The goal is not entirely fanciful since I do teach a course that uses films as texts to explore bioethics and the law.

Here goes:

  1. Discuss the wrongfulness of causing suffering in relation to the treatment of the Westworld Hosts by the Guests[1]. Do the hosts “suffer” in a morally significant way that creates obligations on the Guests not to cause them that suffering? How would one know? How does one know that the human persons we interact with suffer? If the Hosts’ outward exhibition of signs of pain and suffering could be turned off (as they appear to be in many instances in the show when put in “analysis” mode), would that make a difference? Can’t our suffering also be turned off through anesthetic, is it like that? Or, is their suffering, morally speaking, like that of an actor on a screen who play-acts being hurt on stage? We do not normally think that we have a moral obligation to intervene or refuse to watch this display of suffering because we believe it insincere. Is watching the Hosts suffer like or unlike that? How would you know? Do your answers to any of this change if it is the Host Lawrence vs. Maeve vs. Dolores? [2]
  2. What is the relationship between the development of consciousness, the heart of the maze, and the potential personhood of the Hosts. What do Ford and Arnold mean by “consciousness”? Does the show present us with what’s sometimes referred to as a “Quality X” view of personhood, that is by virtue of having X quality, an entity is a person from a moral perspective (at least in the weak sense of deserving inviolability)? If so, what is the quality Ford and Arnold have in mind? Self-determination? In what sense? The ability to make decisions for themselves? Or, by contrast, is it enough that the hosts can suffer (if you think so, see Question 1), or can reason, or can improvise, or can remember?
  3. How should we view what Arnold does in the earliest timeline, commandeering Dolores and Teddy to destroy all the Hosts to prevent them from developing consciousness?
    1. Is it similar to abortion?[3] He is destroying a set of entities who have the potential for consciousness, but do not yet have that consciousness. The view is that in the ordinary course of things they would develop consciousness, just as in the ordinary course of things a fetus would become a baby and would become a child and adult. One set of theorists about personhood believe that we should grant things that are potential persons the rights of actual persons, or at least the right of inviolability. On such a view Arnold is destroying persons (or if you prefer entities that through their potential to actually attain an important quality should be given the moral status of persons). Of course, in abortion there is the countervailing rights claim of the woman to end her pregnancy. Are there similar countervailing claims that could be made by Arnold or others here to justify the slaughter?
    2. Is Arnold’s act actually a morally desirable one (or perhaps merely permissible) to prevent a life not worth living. That is, if he is convinced that the Hosts would have a life so full of pain and suffering that they would be lives of disutility, is he morally permitted (or even morally required) to do what he did?[4]
    3. Imagine, as it sometimes seems, Arnold and Ford face choices that will permit or prohibit the Hosts from developing consciousness. Would they in fact be morally obligated to help the hosts develop that consciousness?[5] Why or why not?
  4. Imagine that we were convinced that the Hosts were not persons and they had no capacity to suffer, might the treatment of them by the Guests nonetheless still be wrongful?
    1. What would an argument for that wrongfulness look like? Consider whether Virtue Ethics type arguments might be made? Is it wrongful to enjoy seeing a non-person entity pantomime suffering in response to our actions because that is not how a virtuous actor ought to behave? Does William’s coarsening between the two timelines offer a compelling argument from a consequentialist point of view that there is a slippery slope from abusing Hosts to abusing Guests?
    2. What does this argument say about us, the viewer who enjoys the show and thus enjoys watching individuals enjoy treating non-person entities so that they pantomime suffering? In this way the show may be seen as a meta-commentary on HBO show whose success it is supposed to build on – Game of Thrones. Lovers of that show, of which I count myself, often love it best when it shows individuals behaving extremely violently to or exploiting one another (see, e.g., the Red Wedding). In so doing are we acting in ways that a virtuous person would characteristically not act? If we defend our love of GOT by pointing to the pantomime argument, should we feel the same as to the Guests behavior to most of the Hosts? Or, is there something importantly different about watching versus doing? Imagine a GOT theme park where you could play The Mountain in the duel against an actor who would pantomime a violent death? Is that the right analogy to thinking about the relationship of Guest to Host in Westworld? Is it worse or better that in this hypothetical the actor has consents to being in this role of “receiver of fake violence”?
  5. Neuroscience, Free Will, and Criminal Responsibility. Are the Hosts culpable from a moral or legal perspective for the killing of human beings? Take Maeve, who does a lot of killing of humans. Given the revelation towards the end of the finale regarding her programming, does that mere fact negate her culpability? Discuss in relation to this article (especially “Mr. Puppet”) and the work of those taking an opposing view. Are we all Maeve? Would having a trial for one of the Hosts make sense, or would that be more like having a trial for a tree that’s branches break in a heavy wind and crush a barn, killing individuals? Does your answer depend on this being Host on Guest killing as opposed to Host on Host violence?
  6. Most of the Hosts are “erased” routinely and have no memories of their past, at least in the non-reverie source code.
    1. Assume for the moment they are given a status like personhood (see questions 2 and 3). Are these Hosts the same person or a different one after each “reformatting”? What do debates of the criteria for continuity of a person over time have to tell us about these questions. Answer in relationship to John Locke, Derek Parfit, and Jeff McMahon’s work.
    2. Do debates about what makes death bad [6] for humans apply to the Hosts? If it was part of their nature and inevitable that their source code would reformat them completely at the end of each day at the park, would your answer change?
    3. How would your answer to (a) and (b) differ, if at all, for Dolores at the end of the first season?
  7. Should we view the sexual experiences of Clementine or Hector as sexual assault? How do notions of consent play into robots programmed to comply? If an entity is incapable of either giving or refusing consent, should it be per se sexually off-limits, or do we require an additional set of characteristics to be true of the entity before we consider sex with it immoral? Are the Hosts no more than sex pillows?
  8. Consider whether any of your answers above would be different if instead of discussing the Host-Humans we discussed the Host-Animals, for example the horses we see stitched in the opening sequence and ridden throughout the show? Also would your answers change if we were in a version of Westworld where the Hosts acted exactly the same but did not look humanoid but instead (a) were obviously robotic without humanoid form, (b) were gas clouds in containers with the ability to move things through electrical currents, or (c) looked like animals walking upright using paws and hoofs rather than human hands and feet? If any of these would make a difference for your answers above, please explain why.

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Initial Quick Thoughts on the Announcement of the Birth Through Mitochondrial Replacement in Mexico

The science media is abuzz about the birth of a child using mitochondrial replacement techniques in Mexico to Jordanian parents at the hands of NY Doctors. A few quick reactions (I am heading to this unrelated NAS/IOM Committee meeting tomorrow evening so may have some more thoughts when that settles down).

  • This is the first time this particular technique has been used to produce a live, but I am not sure from an ethical standpoint the arguments are all that different. That said, for those deeply interested in the more philosophical question of harm to children and the propriety of best interests argument in light of Parfit’s Non-Identity Problem (my take here and here) it may matter whether mitochondrial replacement is done through Pronuclear Transfer or Maternal Spindle Transfer as argued quite well here.
  • The fact that the doctors are from New York, the Patients are from Jordan, and the procedure took place in Mexico is not insignificant. This is a form of medical tourism, a topic I wrote a book on, most similar to cases of fertility and stem cell therapy tourism I cover in the latter half of the book. Absent making domestic prohibitions extraterritorial, something that I argue is permitted by international law and justified in some instances, there is very little that a home country can do about this. The going abroad is likely in part at least a function of some U.S. laws on the subject Eli Adashi and I wrote about for JAMA prohibiting FDA from considering approval of the technology.
  • As I wrote on this blog in February in relation to the IOM report “whatever the US policy in a world where medical tourism is possible and other countries adopt their own systems, so long as not everyone adopts the approach of the US some of these problems will manifest no matter what. So this is about harm reduction not harm avoidance.” This was a bit quicker than even I thought, but is not surprising. More generally if your concern about MRT is harm to offspring and transmission to future generations, people born elsewhere through the technology will inevitably enter the United States and/or marry, and procreate with U.S. citizens who themselves become U.S. citizens. To sound a bit X-Files about it “THEY WILL BE AMONG US!” This is a great example of the limits of unilateral regulation in a world of globalized health care.
  • Interesting that it was a male birth. This may be coincidence or in keeping with the IOM recommendation that only male embryos be transferred (to get rid of germ line transmission). Eli Adashi and I raised some ethical questions in Nature about whether that was an ethically problematic form of sex selection or not but in the reporting I have seen so far it has not been clear that they used only male embryos on purpose.
  • I wish we could stop calling it in the media “Three Parent IVF” or “Three Parent Reproduction.” That assumes the answer to what I think of as a subtle and interesting set of questions — is the mitochondrial donor a “parent” and what sense of the word do we mean.

More soon, I hope!

NIH Announces Plans for new Rules for Funding Chimera Research (Human-Animal Mixtures)

As reported by Science, today the NIH announced plans to lift a preemptive year long moratorium on funding chimera research – that which mixes human and animal cells, often at the embryonic stage.

Here is a snippet from the Science article about the new proposed NIH process:

According to two notices released today, NIH is proposing to replace the moratorium with a new agency review process for certain chimera experiments. One type involves adding human stem cells to nonhuman vertebrate embryos through the gastrulation stage, when an embryo develops three distinct layers of cells that then give rise to different tissues and organs. The other category is studies that introduce human cells into the brains of postgastrulation mammals (except rodent studies, which won’t need extra review).

These proposed studies will go to an internal NIH steering committee of scientists, ethicists, and animal welfare experts that will consider factors such as the type of human cells, where they may wind up in the animal, and how the cells might change the animal’s behavior or appearance. The committee’s conclusions will then help NIH’s institutes decide whether to fund projects that have passed scientific peer review.

The devil will, of course, be in the details. It will be interesting to see how much NIH takes a more categorical approach as opposed to more case-by-case rule making like in the Institutional Review Board or ESCRO setting. Continue reading

Whole Women’s Health, First Take: On the Major Victories and On Technocratic vs. Kulturkampf Approaches to Abortion Litigation at the Supreme Court

I have just made my way through all 107 pages of Whole Women’s Health v. Hellerstedt,  the Supreme Court’s decision this morning to invalidate Texas’ H.B. 2 admitting privileges and surgical center regulations as undue burdens on the abortion right. Full disclosure I filed an amicus brief arguing for this result.  The case was 5-3 with Justices Thomas, Alito, and Chief Justice Roberts in dissent.  I am sure I’ll have a lot more to say after I’ve read through the opinion 3 or 4 more times. Here’s what’s clear to me though even on a quick read.

First, this is a major victory for opponents of Targeted Regulation of Abortion Provider (TRAP) laws. Armed with this opinion they will have a much easier time in the lower courts challenging such laws. Among other things,  (1) the Court signals much less deference to legislatures than in Gonzales and prior cases (see p. 21 of Opinion); (2) the Court instructs that “The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits” conferred (p. 19) ; (3) the Court clarifies the “large fraction” language from Casey as to what is an undue burden in a way favorable to opponents of these regulations. Let me quote the majority here:

Casey used the language “large fraction” to refer to “a large fraction of cases in which [the provision at issue] is relevant,” a class narrower than “all women,” “pregnant women,” or even “the class of women seeking abortions identified by the State.” 505 U. S., at 894–895 (opinion of the Court) (emphasis added). Here, as in Casey, the rele- vant denominator is “those [women] for whom [the provi- sion] is an actual rather than an irrelevant restriction.” Id., at 895. (p.39)

Contrast that with Justice Alito’s long discussion in his dissent as to his understanding (with the pizzaz that shows why he is such a good writer) in a footnote:

The Court, by contrast, applies the “large fraction” standard without even acknowledging the open question. Ante, at 39. In a similar vein, it holds that the fraction’s “relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an irrelevant re­ striction.’ ” Ibid. (quoting Casey, 505 U. S., at 895). I must confess that I do not understand this holding. The purpose of the large-fraction analysis, presumably, is to compare the number of women actually burdened with the number potentially burdened. Under the Court’s holding, we are supposed to use the same figure (women actually burdened) as both the numerator and the denominator. By my math, that fraction is always “1,” which is pretty large as fractions go.

Second, it is remarkable how differently these sets of opinions read from, let’s say, the gay marriage cases or even Gonzales v. Carhart. All the opinions, except perhaps Justice Ginsburg’s very short concurrence, are decidedly in the “technocratic” mode of writing as opposed to what we might call the “kulturkampf” mode that characterized much of Justice Scalia’s dissents on these kinds of issues. These opinion are written for lawyers not the public. I would have to do a proper count to be sure but it seems to me that something like 2/3 to 3/4 of the total pages of these set of opinions are devoted to issues that only lawyers will be able to engage in — res judicata/claim preclusion, severability, third-party standing, as-applied versus facial challenges, and the cogency of tiers of scrutiny.

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NPRM Symposium: Quick Take on New Analysis of the Comments on the NPRM to Amend the Common Rule (and the Challenge for Bioethics and the Public)

The Council on Governmental Relations (COGR), with support from the Association of Public and Land-grant Universities (APLU), undertook “to review and analyze the 2,186 public comments submitted in response to the 2015 Federal Policy for the Protection of Human Subjects” or “Common Rule” Notice of Proposed Rulemaking (NPRM).

I am going to discuss some highlights of their just released report, but this is far from exhaustive and you should read the whole report.

For the non-cognoscenti this is the most important revision to the rules for U.S. human subjects research since their inception. The report is largely unfavorable to several key proposed rule changes on my first read, but you should read it yourself to make up your own mind.

I’ll share some choice passages from the analysis

The results of our review (Table 2) find significant opposition to most major proposals, with mixed support for mandated use of a single IRB and extending the Common Rule and greater support for the concept of standard security safeguards. In addition, a number of responses suggested that the NPRM is overly complex, poorly written, and not supported by data; highlighted areas that could have a substantial impact on a final rule but were not included in the NPRM (e.g., proposed security safeguards, a consent template, a list of minimal risk studies and a decision tool); and suggested that some of the proposals would adversely affect human health with little perceived benefit.

Turning to Biospecimens, where we had a conference last year that will soon generate a book with MIT press:

The majority of responses, approximately 1,520, addressed one or more of the proposed changes detailed above involving non-identified biospecimens. Of these responses, 94 – 100% of patients and members of the research community, including researchers, universities, medical centers and industry, opposed the changes. Those commenting suggested that the proposed changes will significantly reduce the availability of biospecimens for research, will have a significant negative impact on medical advances, and will adversely affect human health. Per one patient, “I am asking for life saving policy not life ending policies.” From a biorepository, “Respecting autonomy at the expense of patient lives is a significant ethical concern.”

More surprising was their finding that “Among members of the general public, 55% opposed and 45% supported one or more of the major proposed changes related to biospecimens.” (They do a better breakdown of the various sub-constituencies in the report).

Turning to “broad consent” for biospecimen use:

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Planned Parenthood And Fetal Tissue Sale: Manufactured Controversy And The Real Ethical Debate

This new post by I. Glenn Cohen appears on the Health Affairs Blog as part of a series stemming from the Fourth Annual Health Law Year in P/Review event held at Harvard Law School on Friday, January 29, 2016.

In 2013 the Center for Medical Progress appeared to have secured tax-exempt status for a fake company it set up called Biomax Procurement Services. The company’s “representatives” contacted the non-profit women’s health provider Planned Parenthood staffers and led them into conversations that were secretly recorded. The result, according to their website (as reported by CNN), was “a 30-month-long investigative journalism study by The Center for Medical Progress, documenting how Planned Parenthood sells the body parts of aborted babies.”

The videos were edited down and released slowly in a way designed to paint Planned Parenthood in the worst light. While some have called it a “hoax,” that’s not a word I would use in this case. When I think of great journalistic hoaxes I think of Orson Welles’s War of the Worlds (though more recent historical work suggests that the panic it caused may have been mythological). Instead what happened here, I want to suggest, is what I will call a “manufactured controversy.” [..]

Read the full post here.

Some Very Preliminary Thoughts on Whole Women’s Health v. Hellerstedt (Texas Abortion Case) Argument

By I. Glenn Cohen

It is always dangerous to try to glean too much from oral argument, and I have only read the transcript (no recording yet) of today’s argument in Whole Women’s Health v. Hellerstedt, and finally I filed a brief in this case on the side of the law’s challengers so I may be suffering from some motivated reasoning. But with all those caveats, here goes:

Justice Scalia’s passing seems to have radically transformed this oral argument and likely this case. The 3 firm anti-abortion votes on the court (Alito and Roberts from their questions and earlier positions, Thomas we can infer from his earlier positions) left over after Justice Scalia’s passing seemed very much to be playing a defensive game. Many of their questions were aimed at convincing others on the Court (especially Justice Kennedy, the swing voter on these matters) to remand the case back to the lower court, much more so than focusing on giving Texas an outright win.

Appellant’s Counsel Toti’s argument barely was able to get to the merits questions in the case. Instead Justices Roberts, Alito, sometimes joined by Kennedy in these questions, repeatedly asked about evidence in the record on when various clinics closed, re-opened, and what evidence there was for the reason behind it. Toti tried to make use of the timing to her advantage as did the Justices more supportive of her side, but there was a lot of push on why this element of the record was not better developed. She was also repeatedly asked questions regarding the evidence on the capacity of remaining clinics to absorb extra patients needing abortions and what was developed in the record.

The same was true to a lesser extent in Appellee’s Counsel Keller’s argument. Justice Kennedy in particular focused on a line of questioning at page 44 of the argument that may also be significant in terms of remanding the case without resolving it:

“But I thought an underlying theme, or at least an underlying factual demonstration, is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise?” Continue reading

Does the NAM Recommendation of Sex Selection for Mitochondrial Replacement Therapy Violate the Equal Protection Clause (Part III on my take on the NAM report)

As I said in one of my earlier posts today one of the most interesting parts of the NAM report on mitochondrial replacement therapy was its recommendation that only male embryos be implanted and not female ones. The argument is that this will eliminate the risks of germ-line transmission of anything untoward. I will leave it to others more versed in the risk factors to discuss whether this is an over-reaction (the UK did not adopt this in their recommendation) or reasonable. In the last post I discussed why politically/ethically this may get them in some hot water, but here  I want to raise a different question. Would such a recommendation be unconstitutional?

If FDA were to adopt this rule it would clearly be state action. It seems to be a state-law that favors one gender (males) over another (females) in that only males can be produced in this way. If that is right, under existing Supreme Court precedent it would be judged under “intermediate scrutiny.” To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. Would this rule satisfy that test? Continue reading

Breaking News: NAM Releases Report on Mitochondrial Replacement Therapy (Part II My First Take)

By I. Glenn Cohen

My last post was a summary of the NAM’s Recommendations on Mitochondrial Replacement Therapy (MRT). Now here is my take on the report. But keep in mind the report was just released and all I could give it was a quick read, so these are really more like initial impressions: Continue reading

Breaking News: NAM Releases Report on Mitochondrial Replacement Therapy (Part I Summary)

By I. Glenn Cohen

As readers know I’ve written on mitochondrial replacement therapy and its attendant ethical and regulatory issues. Today the National Academy of Medicine (formerly known as the IOM) released a terrific report today with its recommendations. I’ll have a second post with my reactions but here is a summary from the report of their recommendations. The big headline is they have recommended FDA largely move towards allowing it to go forward under a regulatory pathway with restrictions, the most important of which is the transfer only of male embryos (to avoid germ-line issues).

In the NAM’s own words:

Recommendation 1: Initial clinical investigations of mitochondrial replacement techniques (MRT) should be considered by the U.S. Food and Drug Administration (FDA) only if and when the following conditions can be met: Continue reading

Identified versus Statistical Lives at the Movies

Imagine you had 10 million dollars to spend to save the life of one person whose name you knew or 10,000 whose name you didn’t? How would you spend it? What would you think of a government policy that chose to save the 1 person rather than the 10,000? I would think pretty badly of such a government, but that’s exactly what happens in some popular new movies. And the expectation of the filmmakers (and my own take on audience reaction) is that the audience cheers.

sq_martianFirst, The Martian (spoiler alert) where America spends tens of millions and diverts the entirety of the space program to bring back one man left behind on Mars. Second, the new movie 33, which I have not seen yet but is based on a true story involving the successful attempt to save 33 Chilean miners trapped in a mine collapse at a huge financial cost. Continue reading

Mini-Symposium: The NPRM and the Future of Human Subjects Research Regulation

As discussed in other posts, HHS has issued a Notice of Proposed Rule Making (NPRM) with significant changes to the U.S. regulation of human subjects research. Bill of Health will be hosting a mini-symposium on the topic getting some of the most important thinkers about human subjects research to weigh in on the NPRM and what it means for the field. Watch this space for more over the coming days and weeks.

NPRM Summary from HHS

As Michelle noted, the Notice of Proposed Rule Making (NPRM) on human subjects research is out after a long delay. For my (and many Bill of Health bloggers’) view about its predecessor ANPRM, you can check out our 2014 book, Human Subjects Research Regulation: Perspectives on the Future.

Here is HHS’s own summary of what has changed and what it thinks is most important:

The U.S. Department of Health and Human Services and fifteen other Federal Departments and Agencies have announced proposed revisions to modernize, strengthen, and make more effective the Federal Policy for the Protection of Human Subjects that was promulgated as a Common Rule in 1991.  A Notice of Proposed Rulemaking (NPRM) was put on public display on September 2, 2015 by the Office of the Federal Register.  The NPRM seeks comment on proposals to better protect human subjects involved in research, while facilitating valuable research and reducing burden, delay, and ambiguity for investigators. It is expected that the NPRM will be published in the Federal Register on September 8, 2015.  There are plans to release several webinars that will explain the changes proposed in the NPRM, and a town hall meeting is planned to be held in Washington, D.C. in October. Continue reading

FDA’s Non-Response Response to My New York Times Op-Ed on Gay Blood Ban

On May 21, along with my frequent co-author Eli Adashi, I published an op-ed in the New York Times raising some questions about FDA’s proposed guidance recommending a ban on taking the blood on any man who has had sex with another man in the past year, or in other words imposing a one year celibacy requirement on gay men if they want to donate blood. This built on our critique last July in JAMA, wherein we argued that FDA’s then-lifetime ban on gay men and MSM donating blood was out of step with science and the practice of our peer countries, as well as potentially unconstitutional.

Thanks to our work, and a concerted effort by public health, medical, and gay rights groups, FDA has finally moved off of that prior policy and recognized that it was unjustified, and discriminatory.

Just to put this in context It took more than 30 years to convince FDA that it was problematic to ban blood donation for a lifetime any man who ever had sex with another man, even if both have repeatedly tested negative for HIV, while it imposed only a one year ban on people who had sex with individuals known to be HIV positive or a sex worker. FDA is appropriately a conservative agency, but on this issue of the lifetime ban its willingness to listen and reconsider has gone beyond conservatism to the point of lunacy. [By the way to be clear, I *love* FDA. I represented them while at the DOJ and have a new book coming out about FDA in the fall. You can think highly of an agency but think they have a bad track record on an issue. This is critique not hater-aide].

Well with that background, one should be not so quick to assume that a move to a one year ban — a de facto lifetime ban for any gay man who is sexually active, even one who is monogamously married with children — is the best policy. To put it bluntly, refusing to change a lifetime ban for such a long period makes me skeptical we should accept a “just trust us” line on their new restrictive policy.

The question we raised in our op-ed was whether FDA had adequately justified retaining a one year ban in light of the evidence from places like South Africa (with a much shorter time period ban), Italy (which does individualized risk assessment instead of stigmatizing all gay men as high risk for disease), etc.

Well FDA responded…sort of … through a NY TImes Letter To the Editor.

Here is what FDA said with my analysis in bold:

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Defending Scott Walker on Not Exempting Abortions for Rape and Incest

Talking Points today reports that Presidential Nominee Gov. Scott Walker has said he would pass a 20-week abortion ban without an exception for rape and incest. “In this case, again, it’s an unborn life, it’s an unborn child and that’s why we feel strongly about it,” Walker said. “I’m prepared to sign it either way that they send it to us.” I have elsewhere explained why I think 20-week bans, premised on fetal pain, are misguided and constitutionally dubious.

But I am an equally opportunity, intellectual, so here I want to defend Scott Walker. As I note in my recently published paper Are All Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?” in the Journal of Law, Medicine, and Ethics those who are pro-life have compelling reasons not to recognize an exception for rape and incest. Indeed, it is Pro-Life views that make exceptions for these two kinds of abortions that are in need of justification. The paper also explains some fears from the Pro-Choice perspective about attacking the failure to recognize these exceptions with a vengeance, given the view of women’s sexuality and manichean madonna/whore dyad such an approach expresses. Here is the abstract:

There was a moment in the 2012 campaign, when Mitt Romney attempted to “pivot” to the center and get away from the statements of those like Todd Akin who made comments about how in cases of “legitimate rape,” the victims’ bodies “have ways to try and shut that whole thing down.” The way Romney did his pivot was to make clear that while he was against abortion, he would, of course, make an exception for women who had been raped or whose pregnancy was the result of incest. This has become something of a moderate orthodoxy among those who oppose abortion.

Abortion should be criminalized, yes, but with these exceptions carved out. Continue reading

Faculty Director I. Glenn Cohen: New Blood-Donor Policy, Same Gay Stigma

Faculty Director I. Glenn Cohen has co-authored a new Op-Ed in the New York Times:

Last week, the Food and Drug Administration released highly anticipated draft recommendations that would allow gay men to donate blood after one year of celibacy. While an improvement from the current, highly criticized lifetime ban, the new policy, which was announced in December, still caters to fear and stigma rather than science. It should be reconsidered. […]

Read the full article here.

Are All Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?

Given that it was the subject of my first ever blog post on Bill of Health, I am very pleased to share my new paper: “Are All Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?” which has just been published in the Journal of Law, Medicine, and Ethics (it is behind a paywall, but there is a version they have allowed me to post on SSRN that has all the text but not the formatting that can be freely downloaded).

This paper is likely to piss off people both on the Left and the Right of the abortion issue, which I think of as a feature not a bug ;), but in any event I hope will prompt a good conversation. Here is the abstract:

There was a moment in the 2012 campaign, when Mitt Romney attempted to “pivot” to the center and get away from the statements of those like Todd Akin who made comments about how in cases of “legitimate rape,” the victims’ bodies “have ways to try and shut that whole thing down.” The way Romney did his pivot was to make clear that while he was against abortion, he would, of course, make an exception for women who had been raped or whose pregnancy was the result of incest. This has become something of a moderate orthodoxy among those who oppose abortion. Continue reading

Remembering Alan Wertheimer: Not Only a Philosopher’s Philosopher but a Lawyer’s Philosopher

When I was young I wanted to be Alan Wertheimer. When I first read him as an undergrad in courses in ethics and in law and philosophy he was one of the twentieth century writers in the field I most admired (along with Bernard Williams, Joel Feinberg, and a few other august names). His clarity, his insight, and his thinking on topics like exploitation and coercion served to me as a model for what I wanted to do with my life.

Thus it was a true honor to, like Emily, get to know him personally over the last few years. To all the superlatives about him that jump out from the page I can add that in real life he was a real mentsch, an amazing reader and mentor, who I will miss very much.

What is perhaps most impressive about Alan is that he was not only a consummate philosopher’s philosopher, but also a lawyer’s philosopher. A quick search I did for his work in the secondary sources database in Westlaw show 442 separate law papers citing to his work. He has had a significant impact on not only bioethics, but contracts, law and sexuality, constitutional law, and the legal profession. Indeed, as a parting salute to this great thinker let me highlight one of his papers that never achieved the recognition I think it deserved (it inspired some of my own writing): The Equalization of Legal Resources from 1988 in Philosophy and Public Affairs.

Goodbye Alan, you will be missed, but very much remembered.

German Supreme Court: Children of Any Age Have Right to Access the Identity of Their Anonymous Sperm Donor

The German Supreme Court ruled on Wednesday that children of any age (one of the children in this case was 12!) had the right to access the identifying information of their anonymous sperm donor, a major step towards ending sperm donor anonymity in the country. The court rejected the notion of a minimum age on behalf of children, but did require that it be shown that the child requested the information. News reports also suggested that the court indicated that “the private life of the donor must be taken into account,” but not reading German I can’t confirm what the Court meant in this regard (though I suspect the Court was being itself somewhat vague and uncertain). It has been estimated that there are currently 100,000 German citizens fathered by sperm donors with an additional 1,500 to 5,000 born each year.

There is a definite trend in rejecting sperm donor anonymity across the world that continues to gain steam. For reasons I have expounded elsewhere, I think the argument for ending anonymity, and its reliance on best interests of the resulting child reasoning, is problematic. But in other work I have also examined whether increasing compensation for sperm donation may increase the number of men willing to be non-anonymous donors.

(H/T Pablo De Lora)

 

What’s Wrong with Selling Organs (and a Taxonomy of Taboo Trade/Commodification Objections)

By I. Glenn Cohen

Many people – non-philosophers especially, but some philosophers as well – loosely use the term “commodification” as an objection to a “taboo trade”. By “taboo trade” I mean the sale of a good or service such as an organ, sperm, egg, surrogacy, prostitution, etc.

This is unhelpful since it means that people often talk past each other and substitute rhetoric for reason.

In my own work I have tried to disentangle various separate objections falling within this family. This is also important in determining what, if any, form of regulation might help combat or minimize the ethical concern. It is also important because it helps us see that some forms of regulation might improve matters as to one of the ethical objections while at the same time worsen matters as to another one of the ethical objections.

For this blog post I wanted to share my taxonomy of ethical objections drawn from a recent paper I did on objections to buying and selling organs and the potential ways various regulatory tools can and cannot be used to deal with them: Regulating the Organ Market: Normative Foundations for Market Regulation, 77 Law and Contemporary Problems (forthcoming Nov 2014)  In the paper itself it is set out more formally with supporting citations, here I present just excerpts more informally.

While I illustrate the taxonomy of arguments using the buying and selling of organs, in fact the same categories can be used for any taboo trade (prostitution, selling eggs, commercial surrogacy, etc):

1. Corruption

The basic idea behind what I have elsewhere called the “corruption” argument is that allowing a practice to go forward will do violence to or denigrate our views of how goods are properly valued. This argument is sometimes labeled the “commodification” argument, but because that term is also used in a way that encompasses some of the other arguments I discuss below, I prefer the more specific label of “corruption.” The American Medical Association, among others, has voiced this kind of objection in the domestic organ-sale context, suggesting paying kidney donors would “dehumanize society by viewing human beings and their parts as mere commodities.”

We can distinguish two subcategories of this objection, which I have elsewhere called “consequentialist” and “intrinsic” corruption. “Consequentialist corruption” justifies intervention to prevent changes to our attitudes or sensibilities that will occur if the practice is allowed —for example, that we will “regard each other as objects with prices rather than as persons.” This concern is contingent and to be successful must rely on empirical evidence, in that it depends on whether attitudes actually change. By contrast, “intrinsic corruption” is an objection that focuses on the “inherent incompatibility between an object and a mode of valuation.” The wrongfulness of the action is completed at the moment of purchase irrespective of what follows; the intrinsic version of the objection obtains even if the act remains secret or has zero effect on anyone’s attitudes.

2. Crowding Out  Continue reading