The Faculty Lounge

Physician-Assisted Suicide and the Slippery Slope

Last week's ruling by the Georgia Supreme Court provides further evidence that the slippery slope is not a real problem with a right to physician-assisted suicide. Since 1994, Georgia's assisted suicide ban prohibited the public promotion and provision of assisted suicide services, but did not reach the private decision of patient and physician to choose physician-assisted suicide. The court struck the law down on first amendment grounds--since it targeted those who publicly advertised or offered services but not others--but even while the law has been in force, there have not been any reports that physicians have misused their freedom to provide physician-assisted suicide privately.

According to a 1994 article in the Georgia State University Law Review, the legislature had rejected a broad ban, in part because it was worried about chilling palliative or other legitimate end-of-life care, but also because it did not want to interfere with private decisions of patient and physician for physician-assisted suicide.

The statute was passed at a time when Jack Kevorkian was actively assisting suicides in Michigan, and the legislature was concerned about him, or someone like him, promoting the practice in Georgia.

Georgia's experience with physician-assisted suicide adds to reassuring evidence about the slippery slope from other states and other end-of-life practices. Oregon has permitted assisted suicide by statute for nearly 15 years, and the state's annual reports tell us that patients rarely use physician-assisted suicide (about 1/5 of one percent of deaths in Oregon), and that it has not placed vulnerable patients at risk. Users of assisted suicide are just as likely to have health insurance or receive hospice care as other terminally ill patients, and they tend to be better educated. Washington and Montana have permitted assisted suicide by statute or court decision for only a few years, but in neither state is there evidence of a slippery slope.

Prosecutors and Pregnancy

As national elected officials clash over access to contraception, a criminal case in Indianapolis also illustrates the price that women can pay for the politicization of reproduction.

In December 2010, Bei Bei Shuai was pregnant and living with her partner, the father-to-be of the child. Instead of marrying her as he had promised, the partner disclosed that he was married to someone else and was ending his relationship with Ms. Shuai. Driven to despair and believing herself worthless and blameworthy, she attempted suicide by swallowing rat poison. Fortunately, friends found her and took her to the hospital. Doctors were able to save her life, and they delivered her 33-week old fetus by cesarean section. Unfortunately, the baby survived for only a few days before dying.

In most cities in this country, Ms. Shuai would have received the mental health care that she needs.  In Indianapolis, the prosecutor has described her as a “cold-blooded” killer and filed murder charges that carry a minimum sentence of 45 years, with the possibility of a death sentence or life in prison without parole.  

After nearly 11 months of jail time for Ms. Shuai, the Indiana Court of Appeals has paved the way for her to be released on bail. However, the court declined to dismiss the murder charge.

(I co-authored an amicus brief on behalf of medical organizations and health care professionals supporting Ms. Shuai.)

What Does Services Does Planned Parenthood Really Provide?

With the renewed attention on Planned Parenthood, as a result of the Susan Komen controversy, the Washington Post republished a chart that shows the distribution of services provided by the organization.  In this chart, which counts the totality of services - rather than bundling services by recipient - we learn that of the 11.4 million services rendered by PP, 35% are for STD diagnosis or treatment, 35% are for contraception, 16% for cancer screeening and prevention, and 3% for abortion services. 

Methodology is everything, of course, and those critical of PP argue that you shouldn't unbundle services because, for example, a person who seeks an abortion may also be receiving other services.  This appears to be true because these 11.4 million services were rendered to a total of 3 million clients.  Of that number, 329,000 received abortion services - something like 11% of all patients.

Of course, another interesting implication of this data is that individuals who come in for abortion services may also be receiving STD or cancer screening.  This suggests that while abortion services may draw individuals to PP, PP is then able to expand ther services to include procedures that that presumably everyone agrees are positive. If this is true, it suggests that a ban on abortion might reduce abortions but could also cause a spike not only in unregulated abortion services but a dip in provision of these other health-improving services offered by PP and received by patients as an unintended (but desirable) byproduct of seeking legitimate abortion services in the first instance.  (Of course, there is an argument that women who, as a result of an abortion ban,  carry to term,  might receive some of these collateral services anyway - either during prenatal care or at delivery.)  

Why So Little Concern About Downer Pigs?

With all of the attacks on the federal government’s power to mandate the purchase of health care insurance, one might have expected more criticism of the Supreme Court’s decision last week in National Meat Association v. Harris.

In that case, a unanimous Court invalidated California’s effort to exclude unhealthy, "downer" pigs, sheep and goats from the food supply, on the ground that Congress had reserved regulatory authority over slaughterhouses to the federal government. Even though California’s law was prompted by video footage documenting the ineffectiveness of federal regulation, the Court denied Americans the ability to turn to their state legislatures for protection.

Why so little concern? Perhaps the health care mandate is more salient, while the risks from food poisoning seem remote. Still, from a federalism perspective that worries about an expansive national government, the preemption of state regulation seems particularly troublesome in National Meat Association. State governments traditionally have assumed responsibility for protecting the public health. After the federal government has seized that responsibility and failed to carry it out properly, critics of federal power should be especially angry.

From my perspective, it would be better if efforts to contain Congress were directed at policies that compromise the public's health rather than at those that will enhance it.

[cross-posted at Health Law Profs blog]

 

Uterine Transplants?

Inspired by Kim Krawiec's example, I thought I'd share a topic from my course on Social Regulation of the Body:

Should surgeons transplant a uterus into a woman who was born without a uterus or has had a hysterectomy and wants to become pregnant? The debate reminds us that efforts to promote family values often neglect the interests of the infertile.

Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but ethicists have raised additional questions about transplantation for life-enhancing body parts like faces and hands. It's one thing to assume health risks for the possibility of a longer life, but are the risks of being a transplant recipient justified by improvements in the quality of life?

As surgeons contemplate uterine transplants, the closer scrutiny can make sense--for example, what risks are posed to the child from the drugs that the woman must take to prevent her body's immune system from rejecting the transplanted uterus? (Proponents of uterine transplants, like Dr. Giuseppe Del Priore, observe that kidney and other organ transplant recipients who take the same drugs have become pregnant and given birth without harm to their children.) We should be careful before adopting a new kind of transplantation.

On the other hand, it's troubling to see scholars question uterine transplants on the ground that giving birth to one's own child is not that important an interest. According to an ethics professor, "tons of people have perfectly normal lives without gestating a biological child." Yet, the alternative for the woman lacking a functioning uterus is to have children with the participation of another woman. This may work for many women, but the legal battles that can follow gestational surrogacy illustrate the risks of that alternative, as well as the significant role that gestation plays in forming motherhood.

On to Bone Marrow

So, my Taboo Trades class has finished blood and is now moving on to bone marrow.  To celebrate the occasion, I’ll be posting some thoughts, links to  Flynn V. Holder, which held that the National Organ Transplant Act did not prohibit payments to certain bone marrow donors, and miscellaneous entertaining stuff my students brought in this week.  I’m starting with the cartoon below, courtesy of Duke Law 3L,Benjamin Wood:

 

Of course, giving bone marrow isn’t the task it once was, a point made clear in Flynn v. Holder.  There are two methods of donation: peripheral blood stem cells (PBSC) and bone marrow aspiration.  According to the Court:

Until about twenty years ago, bone marrow was extracted from donors’ bones by “aspiration.” Long needles, thick enough to suck out the soft, fatty marrow, were inserted into the cavities of the anesthetized donor’s hip bones. These are large bones with big central cavities full of marrow. Aspiration is a painful, unpleasant procedure for the donor. It requires hospitalization and general or local anesthesia, and involves commensurate risks.

See this video from marrow.org, the National Marrow Donor Program, on traditional bone marrow donation.

 

However, according to the Court, in a new technique, now used for at least two-thirds of bone marrow transplants, none of the soft, fatty marrow is actually donated. This new bone marrow donation technique, developed during the past twenty years, is called “peripheral blood stem cell apheresis.”  This procedure begins with five days of injections of a medication called a “granulocyte colony-stimulating factor” into the donor’s blood. The medication accelerates blood stem cell production in the mar- row, so that more stem cells go into the bloodstream. Then, with no need for sedatives or anesthesia, a needle is inserted into the donor’s vein. Blood is withdrawn from the vein and filtered through an apheresis machine to extract the blood stem cells. The remaining components of the blood are returned to the donor’s vein. The blood stem cells extracted in the apheresis method are replaced by the donor’s bone mar- row in three to six weeks. Complications for the donor are exceedingly rare. 

See this video from marrow.org, the National Marrow Donor Program, on peripheral blood stem cell apheresis.

 

I'll be back with more later on why this distinction matters to the question of paying bone marrow donors.

North Carolina Sterilization Victims Compensation

There is some forward progress in the movement to provide compensation to people who were sterilized in North Carolina.  The LA Times' story is here and CNN's is here.  Here is the home page of the North Carolina Justice for Sterilization Victims Foundation and their reports are here.

Cohen on Flynn v. Holder

Glenn Cohen has a very nice write-up on Flynn v. Holder, the bone marrow transplant case, in the New England Journal of Medicine.  Here’s an excerpt:

The Ninth Circuit decision represents both a win and a loss for advocates of organ markets. On the one hand, patients can now buy and sell peripheral-blood stem cells derived through apheresis, which the court claims is the method of bone marrow transplantation used in two thirds of U.S. cases — a significant victory. On the other hand, this narrow win was achieved through a statutory interpretation of NOTA, and Congress can always change the law by adding the words “peripheral-blood stem cells.” Moreover, the Ninth Circuit rejected the plaintiffs' broader constitutional theory — that Congress is barred by the Equal Protection Clause from banning the sale of substances with substantial similarity to blood, sperm, or eggs. So unless advocates for the sale of other body parts can find applicable statutory gaps similar to that regarding peripheral-blood stem cells, their claims will probably fail.

The article is here.  The case, here.

HT: Bob Gutman

 

Cancer Doesn't Discriminate But Federal Law Does

In my morning paper today - the local Charleston Post & Courier - was a surprising story about Medicaid coverage for breast cancer.  Raymond Johnson was diagnosed last month with breast cancer.  Uninsured, he applied under the federal Breast and Cervical Cancer Prevent and Treatment Act of 2000 for Medicaid benefits.  But the state Medicaid agency denied his request.  Why?  Because he is a man.  

The federal law only permits Medicaid benefits to uninsured women who need treatment for breast cancer.  According to the article, the state Department of Health and Human Services has repeatedly urged the federal government to change this policy to no avail.  The American Cancer Society reports that about 2,140 new cases of invasive breast cancer in men are diagnosed each year.    

ASRM Seeks Dismissal of Egg Donor Suit

From Law360 (subscription required for full article access):

Law360, New York (July 18, 2011) -- The American Society for Reproductive Medicine on Friday asked a California federal court to throw out a proposed class action alleging it fixed prices for human egg donation services by setting maximum compensation rules for its member clinics.

The medical association's motion maintains that the suit, filed in April by egg donor Lindsay Kamakahi, fails to state a claim under antitrust law because it does not contest the basic rationale for the price limits, which were imposed to address ethical concerns.

I don’t have access to the full article, but this sounds suspiciously like the standard, and typically unsuccessful, professional association defense.  I’ve discussed those defenses before in a series of posts on Kamakahi v. ASRM (links below) and in a post on Barak Richman’s Rabbinic Cartels paper.  I’ve also specifically critiqued the supposed ethical considerations (commodification and coercion of egg donors and patient protection) here and here.

We’ll have to wait and see how the court rules, I guess.

(HT: Barak Richman)

 

Related Posts:

Kamakahi v. ASRM et al. — Updates

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

 

Access to Medicine in the Global Economy

For those interested in the intersection between patent law and access to medicine in the global trading arena, I would recommend Cynthia Ho's new book, Access to  Medicine in the Global Economy:  International Agreements on Patents and Related Rights.  The book touches on different theoretical perspectives relating to patents and related rights, and how those perspectives might impact interpretations of international treaties on IP (such as TRIPs) as applied to manufacture and distribution of medicines globally.  A very useful and much-needed addition to the literature.

Romney Haunted By Having Helped Sick People

 The reason so many people get their news from folks like Stephen Colbert and Jon Stewart is presumably because these commentators use humor to deliver painful truths effectively.  Now The Onion has a particularly insightful new article entitled Mitt Romney Haunted By Past Of Trying To Help Uninsured Sick People. 

Among the choice quotes:

"My hope is that Republican voters will one day forgive me for making it easier for sick people—especially low-income sick people—to go to the hospital and see a doctor," Romney added. "It was wrong, and I'm sorry...."

"The major strike against Mitt Romney is that he not only tried to help people get medical care, he actually did help people get medical care," conservative columnist Jonah Goldberg said. "No other Republican in the field has that type of baggage. And in the end, in order to defeat President Obama, the GOP needs someone who has a track record of never wanting to help sick people."

 Read it!

When Sunny Samaritans Sue

On Tuesday an egg donor, Lindsay Kamakahi (on behalf of herself and all others who sold donor services during the past four years), sued ASRM (American Society for Reproductive Medicine), SART (Society for Reproductive Technology), all SART-affiliated clinics, and all egg agencies that agreed to abide by ASRM’s egg donor compensation guidelines.  The suit seeks damages and an injunction voiding the guidelines. You can access the complaint here Download Filed-Stamped Complaint.

This suit has been a long time coming.  Regular Lounge readers will recall that this is an issue I’ve blogged about on numerous occasions (see here and here, for example) and on which I’ve published several articles, including Sunny Samaritans And Egomaniacs: Price-Fixing In The Gamete Market in 2009.

I don’t have time today to go into as much detail as I’d like about the complaint, the history of the pricing guidelines, and why they violate U.S. antitrust law, though I will be back with all of that information over the coming days.  For today, let me simply close with an excerpt from Sunny Samaritans:

This naked price-fixing of egg donor compensation is so unusual in the modern U.S. regulatory environment of unrestrained competition that the most intriguing question it raises is not whether it violates the Sherman Act—under existing precedent it does. Rather, the relevant question is how, given the government’s substantial enforcement resources and the presence of an active and entrepreneurial plaintiffs’ bar, this buyers’ cartel has managed to survive unchallenged since at least 2000. One is tempted to assert that the twenty-dollar bill cannot be real, given that it is still lying on the sidewalk.

Glad to see Lindsay Kamakahi and her counsel reaching for that $20 bill.

Related Posts:

Politics and Profits in the Egg Business (When Sunny Samaritans Sue IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

 

 

Al Roth: The Pied Piper of Repugnance?

Stephen Dubner has labeled Al Roth (George Gund Professor Of Economics and Business Administration at Harvard University) the “dean of repugnance.”  I prefer to think of Al as the “pied piper of repugnance,” with his many followers the children of Hamelin (who he doesn’t drown in a river, but rather leads to a magic cave where we talk about repugnance, kidney exchange, and other fun topics). All I know is that hosting Roth for a faculty workshop and visit to my Taboo Trades seminar last week was tons of fun and reaffirmed an impression previously formed from other sources and prior interactions: Al is incredibly generous with his time and expertise. 

Roth was here to discuss his new draft, Organ Allocation Policy and the Decision to Donate, co-authored with Judd B. Kessler.  I was the lucky workshop commentator, together with my colleague Kieran Healy (Sociology, Kenan Institute for Ethics).  Kieran’s research interests are in market- and gift-based exchange in human blood, organs, genetic material, and cultural goods, and the moral order of market society, and it is always a treat to work with him.

The Kessler and Roth project is a laboratory study of an experimental game modeled on the decision to register as an organ donor, and investigates how changes in the management of the organ waiting list might impact the donation rate.  Kessler and Roth find that an organ allocation policy giving priority on waiting lists to those who previously registered as donors (an example modeled on the regimes of Singapore and Israel) has a significant positive impact on registration.  Although the increase in registration rates generated by the priority rule was also eventually achieved by experimental conditions creating a discount, that directly decreased the costs of donation, and by a rebate, Kessler and Roth conclude that the priority rule appears to have advantages over both rebate and discount, including simplicity.   

For the lawyers among us, one of the more interesting aspects of the paper relates to the role of law and, particularly, the choice of default rule.  The paper compares the priority rule to other policies designed to increase the number of registered donors, such as the “opt out” (a.k.a “presumed consent”) rule popular in some parts of Europe, and “mandated choice,” under which everyone (such as those applying for a driver’s license) are required to choose whether or not to donate.  All three regimes are in contrast to the current U.S. “opt in” rule, under which everyone is presumed to be a non-donor unless they choose otherwise.

In contrast to so much work on the choice of donor registration rule, Kessler and Roth recognize that simply increasing the number of registered organ donors may not significantly increase the number of donated organs. As I’ve noted in prior posts, presumed consent laws are not the fix-all that advocates often assume.  Although presumed-consent laws increase the number of registered donors, their effect on procurement rates is less clear.  Specifically, presumed consent laws typically do not remove the next of kin from the procurement process, leaving a potential gap between registration rates and procurement rates.

So, the relevant question is not merely, “which rule increases registered donor rates?”, but also should be, “will any particular rule do a better job than the others of closing any resulting gap between registration rates and procurement rates?”  (Note that the gap works both ways: Kessler and Roth report that the New England Organ Bank is able to recover organs from about half of all non-registered potential donors in New England by approaching next of kin.)

Kessler and Roth conclude that a change to the default rule “is likely to have legal consequences that could be detrimental to organ retrieval,” because it “may weaken the link between the registration decision and the legal clarity of the potential donors’ last wishes.”  But this seems to me to overestimate the importance of law to current procurement practices and underestimate the understandable reluctance of procurement personnel to override the wishes of the deceased’s next-of-kin, even when legally entitled to do so.  Overly cautious legal advice is a well-documented phenomenon in other contexts, especially when negative publicity is associated with legal actions, even those in which the defendant prevails.

Nonetheless, I think that Kessler and Roth may be right that a priority rule has advantages over both opt-out and mandated choice rules.  Not because it increases legal clarity, but because it may increase the chances that potential donors have clearly signaled their wishes to next-of-kin, and thus mediates the space between donor wishes, procurement personnel, and next-of-kin.

Though it’s been suggested that the primary benefit of presumed consent lies in making the wishes of the potential donor more clearly known to her family, this strikes me as backwards.  Although presumed consent could conceivably signal societal norms about organ donation expectations, and thus nudge next-of-kin donation decisions in that way, it seems a rather poor vehicle for signaling individual intent.  A potential donor opting in to donation clearly indicates to her family that, at least at one point in her life, she affirmatively decided in favor of organ donation.  But a failure to opt out doesn’t do so as clearly: did she even see this part of the form?  Did she just not want to think about dying right now and so neglect to decide?

And mandated choice could be even worse on this front.  A prospective donor unwilling to contemplate death and the potential future uses of her body may do nothing under an opt-in regime, leaving open the possibility of posthumous donation through next-of-kin approval.  But, under a mandated choice regime, such an individual could well check no, thus signaling to family (perhaps incorrectly) a desire not to donate.  So, Kessler and Roth conclude that “more than half of the people who are not currently registered under opt in would need to choose “yes” in mandated choice to increase the recovery rate.”

It seems possible that a priority rule, in contrast, could prompt potential donors to alert their family to their donation decision, because it carries with it significant benefits to the entire family (at least under the Israeli model).  All of these conjectures about the role of the default rule on family decision-making are highly speculative, of course, but then so is most of what we think we know about donor registration and allocation regimes.  Which is why projects such as this one by Kessler and Roth are extremely important. 

Driving and the Elderly

Last month Health Affairs published an article about drivers who are elderly and infirm.  The author is a physician who has grappled with the question of whether she should intervene when she judges a patient to be mentally or physically unable to drive but the patient is unwilling to lose the independence and convenience afforded by driving.

This is a problem not only for physicians, but also for family members.  What should we do when we feel our elderly loved ones are endangering themselves and others whenever they get behind the wheel but they refuse to discuss the possibility of relinquishing the driver’s seat?  What should we do when they have car accidents but the police simply issue a ticket or warning and take no further action?   The risk of permanently damaging the relationship with our elderly relatives, the knowledge that a confrontation about driving is sure to be heated and painful, and perhaps a sense of powerlessness to actually enforce a driving prohibition likely deter many of us from pursuing the matter once we meet initial resistance.  

According to the Health Affairs article, by 2020 there will be approximately 40 million licensed drivers over the age of 65.  Only a handful of states require physicians to report potentially unsafe drivers to the Department of Motor Vehicles; 14 states mandate that older drivers renew their licenses more often than younger individuals; and only 17 states have added testing for older drivers.  Other information can be found at a useful website provided by the American Medical Association.    As our population ages, it would be wise for state legislatures to revisit their driving regulations and consider establishing testing programs for elderly drivers.   Any other thoughts or advice about handling this difficult issue would be welcome.

Thoughts after the Funeral

My 96 year old relative died last week of breast cancer.  She had gone to her primary care physician regularly and was followed for heart and blood pressure problems.  However, when listening to her heart, her doctor never paid enough attention to see the egg-sized tumor that was clearly visible to the naked eye right beneath the heart area and never took the time to ask her whether there was anything else that was of concern to her.  My elderly relative told me that she always felt the doctor wanted to end the visit right away, and she never felt it was appropriate to bother him with any additional questions.  Thus,  the tumor was not discovered until it grew completely out of control and was a stage 4 cancer.

Because of insurance and other financial pressures, doctors today have an average of only 15 minutes to spend with each patient.  The New York Times has recently published several articles that highlight the problems this causes in terms of patient care.  My relative’s experience emphasized to me how important it is to be educated about health care and be advocates for ourselves or our loved ones during medical encounters.  It is no longer appropriate to assume that doctors are fully familiar with our medical files or always have time to do thorough exams.

My relative’s final 24 hours gave me first-hand exposure to the remarkable benefits of hospice care.  After a terrible few days in the hospital, hospice enabled her to die at home, without pain, and in the company of loved ones and a caring nurse.  Again, I think of the uninsured.  What an agonizing death some must have without appropriate health care.

Using Electronic Health Record Systems

Has anyone been to the doctor lately and had the physician use a computer in the examination room?  This practice will become increasingly common as the nation transitions to use of electronic health record (EHR) systems, a change that will likely accelerate thanks to $27 billion in financial incentives that are part of President Obama’s stimulus funding.  The federal government’s goal is to computerize all Americans’ medical records by 2014, though this goal is probably unrealistic.

The hope is that health information technology will improve treatment outcomes, efficiency, and patient safety and significantly reduce costs.  Some interesting questions have emerged, however, as to whether the technology, in this relatively early stage of development, raises new medical malpractice concerns.  I have written extensively about this issue here.

Relying largely on paper records would be unthinkable in almost any other profession, and thus medicine seems to be trailing most other fields in adapting to modern technology.  However, EHR systems require clinicians themselves to enter data into the computer rather than to rely on clerical staff to do so.  As described in this compelling account, EHR systems create significant new work demands and take time away from other important forms of patient care.

These are interesting issues to think about in teaching health law or computer law courses as well as any time we visit a medical office.  I would welcome your sharing any negative or positive experiences you’ve had with health care providers who use EHRs.

Thoughts on the Repeal of Health Care Reform

The House Republicans have voted to repeal the health care reform law, the Patient Protection and Affordable Care Act, and a federal district court judge in Florida just deemed it unconstitutional.  These developments come as no surprise, but they remind me of a conversation I once had with students in Australia.  I was teaching an intensive summer course at the University of Melbourne called Health Care & Human Rights, and I mentioned that in the United States, we had at the time approximately 44 million individuals without health insurance.  The class was astounded and didn’t want to discuss anything else for the rest of the session.  I shared their strong feelings about this statistic, but I was a bit surprised by their vehemence.  Finally, one woman raised her hand and told me that Australia’s entire population was under 22 million, and the students just couldn’t believe that we had twice as many people without insurance.  That certainly put the matter into perspective for me.  By the way, the number of uninsured today reportedly exceeds 50 million.

Another thought I’ve had is that those who are opposed to the individual mandate and believe it is unconstitutional to tax people for not buying health insurance should, by logical extension, believe that those who freely choose not to have coverage should not receive care even in an emergency.    This would mean that if a madman shot people in a Safeway parking lot, first responders should abandon those who chose to have no health coverage and allow them to writhe in pain and bleed to death.  If you believe in autonomous choice, you must believe in living (or dying) with the consequences of that choice, right?  Thoughts, anyone?

Introducing Guest Blogger Sharona Hoffman

It is my pleasure to introduce my colleague, Sharona Hoffman, who will be guest blogging with us in February.  Sharona's work focuses on health law (and most recently electronic health records), employment discrimination, civil procedure, and law and religion.  Prior to joining our faculty, she worked at the EEOC in Houston for a number of years.  She Co-Directs the Law-Medicine Center at CWRU and served for three years as Senior Associate Dean at the law school.  With so much of the news focusing on health care reform these days, I'm sure her posts are going to spark a lot of enthusiastic discussion.  Welcome to the Lounge and have fun!

Important Canadian Ruling on Regulating Reproductive Markets

From the Globe And Mail:

A long-awaited Supreme Court ruling that takes the business of regulating the clinical world of baby-making out of Ottawa’s hands has raised questions about the future of fertility treatments in Canada, and fears that the black market for human eggs and sperm will continue to thrive.

Judges found the power to regulate and license doctors and clinics offering fertility treatments belongs to the provinces, as an area involving the practice of medicine. But the ruling, released Wednesday, upholds other elements of the federal Assisted Human Reproduction Act, including those governing the use of human embryos in stem cell research. . . . 

It was Quebec, later joined by New Brunswick, Saskatchewan and Alberta, that challenged the federal assisted human reproduction law shortly after it was passed in 2004. Quebec had argued that regulatory control over reproductive technologies is a provincial matter.

According to the report, the 163-page opinion continues to allow the federal government to prohibit payment to surrogates and limit payments to egg and sperm donors.  

And from the Toronto Star:

In a landmark advisory opinion, a deeply divided Supreme Court of Canada ruled major sections of the federal law on assisted human reproduction fall outside Ottawa’s power to regulate under criminal law.

The court said it is up to provinces to control the licensing of doctors and clinics and to regulate how they deal with donors and would-be parents, or with eggs, sperms or embryos for research purposes, including developing new genetic therapies for disease. . . .

Certain federal criminal bans still stand. It is still illegal to pay for surrogacy, and the federal government may limit reimbursements to donors and surrogates for expenses only, although the federal government has never defined an allowable expense.

Ottawa may still legislate mandatory written consent of donors; a ban on extracting eggs or sperm from persons under 18 except to preserve their fertility; and a prohibition on “chimera” or human-animal hybrids. 

Those practices, a majority of judges agreed, are rightly up to the federal government to control with criminal laws, under its power to protect morality, public health and security in Canada. 

Much more news coverage over at How Appealing

HT:  Larry Helfer