The Faculty Lounge

Permanent versus Temporary

Bridget's post about Texas got me  thinking about perpetuity.

I spend most of my time thinking about land conservation these days. In particular, I have been obsessed with intrigued by conservation easements.

Conservation easements are like those restrictive covenants and easements we muddled through in our property classes. Although the details differentiating them are unimportant here, one key selling point of conservation easement is that they can be (and in many cases must be) perpetual. One of the more controversial arguments I have made recently is that conservation easements should not last forever. While I have no intention or need to reopen  that debate here, I was surprised to stumble across an a recent article from the journal Biological Conservation. In Temporary Conservation for Urban Biodiversity, the authors argue against prioritizing brown fields for redevelopment. Specifically, they argue that leaving sites vacant temporarily (their study suggests 15 years) will increase urban biodiversity.

There are a lot of caveats here of course. Their case study is from Bremen, Germany where land-use planning laws and paradigms differ. They are only talking about what to do with brownfields, not benefits that may or may not accrue from greenfield conservation. And yet, I am still fascinated by this article. Land conservationists generally argue that brownfields should be developed instead of greenfields and that when we do preserve land, we should preserve it for as long as possible (preferably forever). This article challenges those assumptions.

Posner on Foley (on Blobs)

Eric Posner reviews Elizabeth Price Foley’s The Law of Life and Death (HUP) in The New Republic.

An excerpt:

In eighty years or so, the average American goes from blob to person to blob. The middle phase of this continuum jangles with the bells and whistles of personhood—rights, interests, human dignity, legal protections, the works. The blobs are, at one end, an invisible bunch of cells and, at the other, a mass of putrefying flesh material. The blob-person and person-blob transitions give ethicists, legislators, and judges a great deal of trouble. How does the law keep up as the initial blob advances to human being, and then the human being degrades to blobness? 

 

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.

What Happens When You Find the FBI's GPS Tracker on Your Car

Over at Wired there's an interesting story describing what happened when a 20 year old found the FBI's GPS tracker that was surreptititously placed on his car.  At right is a picture of the device courtesy of the Wired story.  Apparently the target of the surveillance brought his car in for an oil change.  The mechanic saw a wire sticking out from underneath the car and pulled out the device.  The target of the surveillance posted photos of the device on-line to find out what it was.  It turns out the device is an Orion Guardian ST820 an older model GPS tracking device.  Not surprisingly, it didn't take long for the FBI to show up at the target's door demanding their device back. 

The target of the surveillance is Yasir Afifi, a U.S. born citizen, business student and son of an Islamic-American man who died in Egypt last year.  The ACLU has jumped onto the case declaring to Afifi "This is the kind of thing we like to throw lawyers at."  According to the report, "Brian Alseth from the American Civil Liberties Union in Washington state contacted Afifi after seeing pictures of the tracking device posted online and told him the ACLU had been waiting for a case like this to challenge the ruling."

A very interesting story, well worth the read. 

 

The Corporate Governance Debates Invade Botany (Or, Australia May or May Not Be Ready for a Female P.M., But It Will Always Have Acacias)

My next door neighbor and good friend is a noted evolutionary biologist at Harvard.  He's a theorist (not an experimentalist) with unbounded curiosity and good fellowship (thus, not surprisingly, an Aussie to boot).  One of my favorite pastimes of a late Friday or Saturday afternoon is to share a bottle of varying grades of wine and BS on subjects that invoke, among other things, law, adaptation, selection, philosophy of science, consciousness, game theory, and faculty politics.  This is merely to explain how I happened to get two papers from the scientific journal Taxon (Issues 2 (pages 613-616) and 4 (1188-1195) of Volume 59), which came out in April and August of this year.  He thought that I, as a lawyer, would find the subject matter interesting, and handed the pages over the fence early yesterday morning.  I do, because it sounds so much like the debates over corporate governance, namely, is the institution being governed a representative democracy or not?  (Full disclosure:  I have no clue about the International Botanical Congress, but I tend to side with people like Steve Bainbridge on the shareholder democracy issue:  a corporation is NOT a democracy.  That's because I don't buy the democracy metaphor to begin with, but more of that below.)

This is apparently a raging issue in the field of botany, but it takes a while to understand just what's at stake here.  The issue is one of botanical nomenclature.  There are substantive and procedural rules and recommendations for "conserving" the name of a genus, and they are set forth in the International Code of Botanical Nomenclature (the "Code").   It looks to me like it's the analog to what ICANN does for domain names:  making sure that there is uniformity in the use of particular signs as identifiers of something, whether it's a page on the World Wide Web, or a particular kind of plant or organism. 

In 2005, somebody proposed that the name Acacia Mill. be conserved with a new type (Acacia penninervis Sieber ex DC.) lest something like 1000 taxonomic groupings in Australia be required to go by a new name Racosperma Mart.  The effect of this would be to deny the name Acacia to the African-Asian A. scorpiodes (L.) W. Wight (= A. nilotica Karst.).  As you can imagine, the Scorpiodes camp objected to the attempt of the Penninervis camp to appropriate the Acacia name by way of taxonomic legislation at the 2005 Intenational Botanical Congress in Vienna.

But the botanical community is now beyond the merits of the debate and into matters that invoke the very rule of law.  The reason is that the Nomenclature Section debated and voted on the issue, and rejected the proposal, with 45.1% in favor, and 54.9% against.  But to quote the paper at 59 Taxon 1188 (2010):  "Surprisingly, the proposal was treated as having been approved by the Section's administrators, who ruled that it only needed to receive a 40% positive vote to be approved."  Here are the argument headings in the paper:

(1) Use of Article 14.14 allowing only a 40% positive vote for passage of [the Acacia proposal] was unjustified.

(2) Decision-making authority to amend the Code lies with the Nomenclature Section and International Botanical Congress, not with any Committee.

(3) Decisions are made only through a majority vote.

(4) The Vienna Nomenclature Section's own rules of procedure were not followed during the vote on [the Acacia proposal].

Can a corporate board take action (say, instituting a poison pill or maintaining a classified board or a particular executive compensation scheme) that, in its judgment is in the best interest of the corporation and the shareholders, even if a majority of the shareholders disagree?  Under the governance provisions of the Code, can the General Committee (which is composed of the secretaries of the other Committees [Spermatophyta, Pteridophyta, Bryophyta, Fungi, Algae, and Fossil Plants], the rapporteur-général, the president and the secretary of the International Association for Plant Taxonomy, and at least 5 members to be appointed by the Nomenclature Section) conserve or reject botanical names in the best interest of the scientific world as a whole, even if a majority of the members of the Nomenclature Section disagree?

Well, I think this turns out to be a metaphor problem, akin to the burning question whether Goldman Sachs's role in marketing synthetic CDOs is more aptly seen as "bookie" or "trusted confidant."  Is representative democracy the appropriate metaphor for corporate entities or scientific congresses?  Inquiring minds want to know.

Heroes, Dopers, and Superhumans

 As I noted in my last post, the Tour de France has begun, meaning that it is also time for the annual hand-wringing and head scratching about sports doping issues.

The last issue of New Scientist has an interesting article on the topic:

Each extraordinary performance in the race will, however, generate suspicion as well as admiration. Allegations of doping have plagued the Tour for so long that any rider who excels now inevitably attracts talk of drug use.

But what if a superhuman performance itself could be used as evidence of doping? That's the thinking behind a new strategy, which asks: "Is this physiologically possible without the aid of drugs?"

The idea is straightforward: work out the boundaries of human ability, based on what we know about physiology and its maximal capabilities. If an athlete's performance lies outside this limit, they are highlighted as a potential drug-taker and given more frequent and extensive drug screenings.

 The article notes that, prior to widespread EPO use, Tour winners' average power output was 380 watts on big climbs, with none exceeding 410 W.  From 1994 onwards, when EPO use became more widespread, about six riders per year averaged over 410 W.  Levels then dropped at the end of the decade as EPO testing improved, then rose again after 2000. Similar advances have been seen in VO2 max measures. (The Science of Sport also has some good posts on point here and here).

The article asks:

 

Do these high levels reflect a leap in human achievement, or are they a signature of artificially enhanced physiology? . . .

 

On the basis of a person's physiological measurements alone, it is impossible to say otherwise. "Doping can never be inferred from performance only," says Schumacher.

 

During last year’s tour, I blogged about sports doping, the suspicions raised by Contador’s record-breaking climb on the Verbier, and about the differing takes of Michael Sandel and Richard Posner on the sports doping issue (which I just reposted yesterday).   And I’m sticking by my heretical contention that the Tour is less interesting in the absence of doping – it’s precisely these types of superhuman efforts that we love to watch. As I said in that post, Vive Le Tour! Vive Le Dope!:

We loved Contador’s heroic feat on Verbier – it was exciting.  Just like we loved Floyd Landis’s epic 2006 comeback; Tyler Hamilton’s superhuman 142 km solo breakaway, stage win, and fourth-place GC finish with a broken collar-bone; and Vinokourov’s spectacular mountain-top breakaway.  Because, as Phil says in this video of the relevant Vino footage, “everyone loves a fighter.”

 

. . . Until we found out they were all doping, that is.

 

Maybe the Tour exists because – not in spite – of doping.  And it’s a wonderful spectacle. Vive le dope! Vive le tour!

Photo: me (or, at least, my hand) showing off entry passes to the Nike box on the final 2008 stage on the Champs-Élysées (thanks Martha!)

Image Source (AG2R La Mondiale rider Lloyd Mondory of France gestures after he crashed near the finish line of the 1st stage of the Tour de France cycling race from Rotterdam to Brussels yesterday).

iPhone 4

Are you considering adding the new iPhone 4 to your technology arsenal?  Houston Chronicle columnist Dwight Silverman has a favorable review here.

Aaron (Hank and Tommie), Brett (George and Ken), Conigliaro (Billy and Tony), Etc.: Sibling Behavior On The Diamond

Readers with an interest in both baseball and sibling behavior may find interesting a recent article entitled Birth Order and Risk Taking in Athletics:  A Meta-Analysis and Study of Major League Baseball, published in the current issue of Personality and Social Psychology Review and co-authored by Frank Sulloway and Richard Zweigenhaft.  Here's the abstract:

According to expectations derived from evolutionary theory, younger siblings are more likely than older siblings to participate in high-risk activities.  The authors test this hypothesis by conducting a meta-analysis of 24 previous studies involving birth order and participation in dangerous sports.  The odds of laterborns engaging in such activities were 1.48 times greater than for firstborns (N = 8,340).  The authors also analyze performance data on 700 brothers who played major league baseball.   Consistent with their greater expected propensity for risk taking, younger brothers were 10.6 times more likely to attempt the high-risk activity of base stealing and 3.2 times more likely to steal bases successfully (odds ratios).  In addition, younger brothers were significantly superior to older brothers in overall batting success, including two measures associated with risk taking.  As expected, significant heterogeneity among various performance measures for major league baseball players indicated that older and younger brothers excelled in different aspects of the game.

I am unable to find a free-access link to the article.  But The New York Times discusses the article in this story.

Trivia question:  which trio of brothers aggregated the most career hits?  Click here for the answer.

Hubble Telescope - 20th Anniversary

Today is the 20th anniversary of the launch of the Hubble telescope and the telescope's latest image has just been released:

For an archive of images and full story, see here.

Organ News

 Via Al Roth:

A living lung donor is running today in the Boston marathon

Live kidney donation via twitter and other social networking sites

The first kidney exchange in the U.S., and other accounts of early progress

And, via my Taboo Trades and Forbidden Markets Seminar students, who met for the last time yesterday (thanks for the fun, guys!):  NY Times: Why New Yorkers Don’t Donate Organs

Image source: http://www.topnews.in/new-online-forum-organ-donation-2253566

Defective Sperm No Basis For Products Liability Suit

The 3rd U.S. Circuit Court of Appeals has ruled in Donovan v. Idant Laboratories that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit, because it would recognize a claim of "wrongful life."  According to Law.com, the case:

Upholds a June 2009 decision by U.S. District Judge Thomas N. O'Neill Jr. that rejected claims by both a mother and a daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

O'Neill had initially ruled that, under New York law, the sperm bank could be sued under products liability laws because "the sale of sperm is considered a product and is subject to strict liability." But two months later, O'Neill reversed himself and dismissed the entire case, predicting that the New York Court of Appeals would reject the claim. "I find it more likely than not that it would find that the injuries alleged in plaintiff's strict liability and warranty claims are essentially claims for wrongful life."

The Third Circuit affirmed, stating: “Regardless of whether a particular cause of action is denominated as one of contract, products liability, or something else, all of the claims on behalf of B.D. suffer from the same defect: the lack of a cognizable injury.”  Said the Court:

Wrongful life cases pose particularly thorny problems in the damages context:  “Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependant upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence.  This comparison the law is not equipped to make.”  Becker, 46 N.Y.2d at 412.

For procedural geeks, the lower case raised some interesting choice of law issues. While both New York and Pennsylvania have "blood shield statutes" that prohibit products liability suits stemming from blood or blood products, Pennsylvania's blood shield statute includes human tissues other than blood, whereas New York's statute includes only blood and its derivatives:

O'Neill found that there was a "true conflict" between the laws of the two states because "semen is not a blood derivative," and Brittany Donovan would therefore have a valid cause of action under New York law, but not under Pennsylvania law. . . .

Although other states' blood shield laws and Section 19 of the Restatement (Third) of Torts all say that human tissue and organs are included in the list of products that are exempted from strict liability law, O'Neill found that "the relevant New York statute does not and no case law has extended the statute to also exempt human tissues like sperm."

For a history of blood shield laws and an argument that the blood industry’s response to the HIV/AIDS epidemic in the early 1980’s strongly suggests that things would have turned out better for some, perhaps many, recipients of blood products had strict-liability rules been in effect, see Clark C. Havighurst, Trafficking in Human Blood: Titmuss (1970) and Products Liability (PDF).  The full symposium volume is here:

 

Volume 72	Summer 2009	Number 3
SHOW ME THE MONEY: MAKING MARKETS IN FORBIDDEN EXCHANGE Kimberly D. Krawiec Special Editor
Foreword                      PDF		Kimberly D. Krawiec	i
Trafficking in Human Blood: Titmuss (1970) and Products Liability                      PDF		Clark C. Havighurst	1
Altruism, Markets, and Organ Procurement                      PDF		Julia D. Mahoney	17
Gender and the Value of Bodily Goods: Commodification in Egg and Sperm Donation                      PDF		Rene Almeling	37
Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market                      PDF		Kimberly D. Krawiec	59
Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts                      PDF		Hugh V. McLachlan J. Kim Swales	91
Surrogacy and the Politics of Commodification                      PDF		Elizabeth S. Scott	109
The Debt Financing of Parenthood                      PDF		Melissa B. Jacoby	147
Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform                      PDF		David E. Bernstein Thomas C. Leonard	177

 

 

(HT: Kathy Bradley)

Related Posts:

Does The Number 1700 Cause Sperm To Go Where It Shouldn’t?
Celebrity Look-Alike Sperm Sale
U.K. To Reconsider Payments to Egg and Sperm Donors
More Live Sperm, Dead Donor
Live Sperm, Dead Donor . . . No Case
No End To Men

The Value of Smart Eggs

A few weeks ago, Aaron D. Levine (Assistant Professor, Georgia Institute of Technology) visited my Taboo Trades and Forbidden Markets seminar in advance of the release of his Hastings Center Report: Self-Regulation, Compensation, and the Ethical Recruitment of Oocyte Donors.  The report represents an important effort at bringing empirical analysis to bear on questions that are often answered largely through anecdote: who are egg donors, how much are they paid and why, and how are they found? (Paul Caron has links to the extensive media coverage).

The report uses a novel data set—a collection of oocyte donor recruitment ads published in college newspapers across the country—to assess the extent to which advertisements that recruit donors comply with the ASRM guidelines for compensating oocyte donors, which specify maximum compensation levels of $5000, in the absence of justification, and prohibit compensation above $10,000.  Levine finds that $5,000, the maximum compensation level acceptable under the ASRM guidelines without justification, was both the modal and median value among the set of 105 advertisements.

Roughly 50% of the advertisements offered compensation in excess of $5000 and roughly 23% offered compensation in excess of $10,000.  Some of the ads offering more than $5000 and most of those offering above $10,000 also contained appearance or ethnicity requirements, which is prohibited by the ASRM compensation guidelines.   Finally -- and this is the portion of the report that has generated the most media attention -- Levine’s data strongly suggest that donor agencies and couples are placing more value on oocytes donated by women with higher SAT scores, which would violate the ASRM guidelines.   Indeed, in one model, an increase of one hundred points in the SAT score of a typical incoming student increased the compensation offered to oocyte donors by $1,930 for general advertisements placed by donor agencies; by $3,130 for advertisements placed on behalf of a specific couple; and by $5,780 for advertisements placed by a donor agency on behalf of a specific couple.

It’s a testament to Aaron’s good nature that he’s still friendly to me, after I first invited him to Duke for a workshop, then attacked his paper for an hour and a half.  (I did buy several rounds of drinks at the Washington Duke as reimbursement, as I’m a strong believer in just compensation).  Though Levine’s research brings much-needed empirical insight to bear on questions of egg donor compensation, I very much disagree with the report’s normative position – that the ASRM oocyte donor compensation restrictions are justifiable and their violation a cause for industry, public, and government concern.  

The report’s conclusion relies on three highly contestable assumptions: (1) that oocyte donor compensation is commodifying; (2) that oocyte donor compensation, especially at high levels, is coercive or exploitative; and (3) that selecting and compensating oocyte donors on the basis of personal characteristics, such as ethnicity or intelligence, is ethically problematic.  The first two assumptions – commodification and coercion – are ones that I’ve critiqued at length, both in recent scholarship (see here and here) and on this blog (see the links below). 

But the third assumption – that selecting and compensating oocyte donors on the basis of personal characteristics presents ethical problems – is dubious as well.  The fertile have always selected reproductive mates based on qualities such as appearance, race, ethnicity, and intelligence.  Their sorting process is normally more subtle than a four or five figure advertisement in a prestigious college newspaper, but the infertile have fewer options at their disposal and the end result is the same – some traits are more highly valued in a reproductive mate than others, a realization that should have no shock value among even the most sheltered of academic sensibilities.

In his response accompanying the report, John Robertson (Texas, law) questions whether there are really any ethical problems raised by the study – after all, Levine finds compliance with the ASRM guidelines in at least half the advertisements in his sample.  I would argue, however, that Levine’s study highlights a serious ethical issue, though it is not infertile couples or the agencies working on their behalf whose behavior is ethically troubling.  It is ASRM’s paternalistic and misguided attempts to control oocyte donor compensation through the same type of professional guidelines that courts have rejected when employed by engineers, lawyers, dentists, and doctors that should raise an ethical red flag.

Related Posts:
U.K. Oocyte Raffle
How Is An Egg Donor Like A Prostitute?

Like A Virgin? We Sell That Here!


Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research


A New Meaning To "Nest Egg"


U.K. To Reconsider Payments to Egg and Sperm Donors

Kieran Healy On The Irrelevance of Law (and Motives)

Duke sociologist (and Crooked Timber blogger) Kieran Healy visited my Taboo Trades and Forbidden Markets seminar this week to discuss his book, Last Best Gifts (University of Chicago Press, 2006) -- a study of the social organization of exchange in human blood and organs – as well as his research on presumed consent laws (See, Do Presumed Consent Laws Raise Organ Procurement Rates? DePaul Law Review, 55:1017–1043 (2006)) (PDF).  Healy has also written several other articles about gift and market exchange in human blood and organs and, in addition, studies the moral order of market society (See, for example, Marion Fourcade and Kieran Healy, Moral Views of Market Society. Annual Review of Sociology 33:285–311 (2007) (PDF.))

This was an in-person meeting that I’ve been eager to arrange for some time.  I discuss the book every year, and recommend it to anyone interested in blood and organ exchange.  I have also assigned the Moral Views piece in prior years, and naturally all of this work has impacted my own research on these and related topics.  But I had not read the Presumed Consent article until now, which has been my loss.  And if you haven’t read it, you really should rectify that, even if you have no interest in organ procurement or presumed consent rules.

Here’s why. In brief, the article is a comparative study of rates of cadaveric organ procurement in seventeen OECD countries between 1990 and 2002.  Those in the United States (and other countries, including the UK) concerned with insufficient cadaveric donor rates frequently advocate a switch to a presumed-consent legal regime (as opposed to the US informed consent regime), as a quick fix to the problem of under-supply.  This seems logical enough – in other contexts we have reason to believe that alterations to the default rule, and particularly from an opt-in to an opt-out regime, may meaningfully impact behavior.  This is especially plausible when the law functions as some sort of signaling device about societal norms or when, as in the case of organ donation, choosing involves scenarios – death – that one prefers not to contemplate, perhaps causing inertia. 

But in the case of cadaveric organ donation an additional argument is typically put forward in favor of presumed consent: the removal of next of kin from the decision-making process.  Though the Revised Uniform Anatomical Gift Act specifies that family consent or concurrence is not required, the reluctance of procurement organizations in the U.S. to proceed with organ retrieval against next-of-kin wishes has been generally recognized. 

Yet Healey finds that presumed consent laws do not make a material difference to the procurement rate.  Importantly, presumed consent laws typically do not remove the next of kin from the procurement process.  Although presumed-consent countries have somewhat better procurement rates on average than informed-consent countries, Healy concludes that this is not because of any direct effect of the law on individual choices.  Instead, improved donation rates appear driven by substantial investment in the logistics of organ procurement – better training, clear delegation of responsibility, and a strong presence in hospitals, for example.

This is not the first finding of legal regime irrelevance, of course, but it’s a particularly interesting one, nonetheless.  Moreover, as I’ve noted in prior posts, questions about the structure of organ exchange and other taboo trades are dominated by debates about motives – whether those participating in the exchange are behaving altruistically or selfishly.  But Healy’s research calls into question the extreme attention devoted to this aspect of the organ debate.  At the least, it has a tendency to obscure structural, cultural, and organizational differences that may largely drive differences in procurement rates, and distract attention from possible reforms that could increase procurement rates.

To get a flavor of the day, watch this interview with Healy:

U.K. Oocyte Raffle

Via Al Roth. 

According to press reports:

The raffle, to be held on Wednesday, is to promote a tie-up between the Bridge Centre, a fertility clinic in London, and the Genetics and IVF Institute (GIVF) in Fairfax, Virginia.

The Anglo-American commercial venture was set up last autumn and is aimed principally at women in their forties and fifties who have little prospect of a successful pregnancy with fertility treatment using their own eggs. . . .

Michael Summers, a senior consultant in reproductive medicine at the Bridge, . . . believes a relaxation of restrictions on payment for egg donors in Britain will depend on the results of the next election. If the ban stays in place, he predicts infertility tourism to America will grow steadily.

Feminist law professor Bridget Crawford thinks the auction is “repulsive” and “should shock the doubt out of anyone who has ever questioned the existence of a massive commercial trade in human body parts — and human eggs, in particular.” 

But the reason for the venture between Bridge and GIVF – and thus the raffle – is precisely because the U.K. prohibits commercial trade in human eggs. HFEA rules requiring donor registration and limiting egg donor compensation to lost wages and reimbursable expenses, a £250 maximum, have caused severe gamete shortages and resulting fertility tourism to other countries, which I discuss at length here.  What’s repulsive is not the raffle, but the U.K.’s misguided policies on egg donor compensation, which unfortunately are making their way into some U.S. state legislatures this year. 

Related Posts:

How Is An Egg Donor Like A Prostitute?
Like A Virgin? We Sell That Here!

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

A New Meaning To "Nest Egg"

U.K. To Reconsider Payments to Egg and Sperm Donors

Baby Markets Is Here!

Baby Markets: Money and the New Politics of Creating Families, edited by Michele Bratcher Goodwin (University of Minnesota), is available from Cambridge University Press.  Contributors include: Michele Goodwin, Martha Ertman, Kimberly Krawiec, Mary Anne Case, Sara Dorow, Ruth Arlene-Howe, Elizabeth Bartholet, Jose Gabilondo, Mary Eschelbach Hansen, Daniel Pollack, Naomi Cahn, Maggie Gallagher, Debora Spar, John Robertson, June Carbone, Nanette Elster, Lisa Ikemota, Michelle Oberman, Viviana Zelizer, Sonia Suter

And my chapter, Price And Pretense In The Baby Market, is available on SSRN.  Abstract:     

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against baby selling - typically defined as a prohibition against the relinquishment of parental rights in exchange for compensation.

This Essay explores the costs of societal pretense that legal baby markets do not exist. Those costs include scarcity, foregone opportunities to address market failures, an inability to develop regulations designed to further particular public policies unlikely to be advanced solely through the goal of profit-maximization, and the promotion of rent-seeking. This Essay focuses specifically on the rent-seeking problem, arguing that, although frequently defended by those who contend that commercial markets in parental rights commodify human beings, compromise individual dignity, or jeopardize fundamental values, bans against baby selling (at least as currently written and enforced) serve little purpose other than enabling anti-competitive behavior by the most economically and politically powerful baby market participants.

Baby Markets in Charlottesville

I drove up to UVA yesterday for a great panel on Baby Markets, sponsored by the Feminist Legal Forum, Lambda Law Alliance, and the Health Care Association.  The panelists were yours truly, the fabulous Sarah Lawsky, and the also fabulous Julia Mahoney. 

Wow!  Charlottesville has had a lot of snow lately (compared to the sprinkle we’ve received in North Carolina, at least).  The panel was a lot of fun, though.  Always great to see Julia and Sarah and to discuss these issues with such knowledgeable colleagues.  And the student moderator, Kate Lydon, did a great job putting everything together, organizing a set of questions, and keeping the three of us on track.   Finally, the audience -- very engaged, with lots of smart questions -- seemed genuinely interested in learning more about these issues.

There is a slight problem getting home, though.  I just got my car out of the shop on Monday, after having it serviced, tires changed, and all sorts of other costly repairs.  On the way up here, all the service lights went on, the car started shaking, and the smell of some unidentifiable (but clearly burning) fluid became apparent.  I don’t know what all of that means, but I’m sure it can’t be good.  A few minutes ago, the tow truck came to take it away.  

Pictured above, the Boar's Head Inn.  Not a bad place to be stuck, as you can see, but also not a place where I'm likely to meet my next article deadline, since I don't have my books or notes with me.  

Update: Below is the flyer for the event.

IOC Recommendations on Intersex Athletes Released

As I previously blogged about here and here, I just returned from the 2nd World Conference on the Hormonal and Genetic Basis of Sexual Differentiation Disorders and Hot Topics in Endocrinology in Miami, held in conjunction with the International Olympic Committee’s special conference of medical experts to draw up guidelines on the competitive eligibility of intersex athletes. 

Yesterday, the IOC released recommendations stemming from that conference.  I can’t find a copy of the recommendations to link to at this time, but Gina Kolata’s NY Times article reports on some of the content.   According to Kolata:

Athletes who identify themselves as female but have medical disorders that give them masculine characteristics should have their disorders diagnosed and treated, the group concluded after two days of meetings in Miami Beach. The experts also said that rules should be put in place for determining an athlete’s eligibility to compete on a case-by-case basis — but they did not indicate what those rules should be.

Obviously, one needs more information than this to say much of anything useful about the specifics of the recommendations.  But even given this limited bit of information I would expect this recommendation to be controversial for at least two reasons. 

First, some have already taken issue with the IOC position that intersex athletes have medical disorders that must be diagnosed and treated (see here also).   I have not seen a statement yet from patient advocate groups, such as Accord Alliance or others, but will be interested to see their position.  As stated by Ross Tucker at Science of Sport:

If this is the agreed upon approach, then fairness is very definitely an issue.  One cannot be forced into medical treatment as a condition for participation, surely? . . .

As I see it, the only way this would be feasible is if athletic competition with such a sex ambiguity poses a risk - then authorities could say that they do not wish to be party to the increased risk and deny the athlete the right to participate.  The risk of having such a condition alone would not entitle the IOC to ban an athlete, surely?

Second, many female athletes and others involved in female athletics have expressed concerns about competitive fairness (see the above-mentioned NY Times article for quotes from some).  Again, the specifics of the recommendation are quite vague at the moment, but would appear to treat the potential competitive advantage arising from some intersex conditions as either irrelevant or reversible through treatment.  But this may not be the case: some intersex conditions can alter skeletomuscular structure in lasting ways that may impact athletic performance.  (See here for a short article reviewing these issues)

And none of this even begins to touch on the murky issues relating to other biological athletic advantages.  As noted by George Dvorsky at Sentient Developments:

Immediate examples include swimmer Michael Phelps with his many advantageous traits (including the possibility of Marfan Syndrome) and those athletes with higher levels of hemoglobin which gives them superior oxygen-carrying capability.

Clearly, sport is not – and never has been -- about creating a completely level playing field.   Yet it does involve drawing a variety of sometimes-arbitrary seeming lines for the sake of maintaining performance within specified ranges considered conducive to competition (and, thus, audience appeal).  See, for example, the recent debate between Richard Posner and Michael Sandel (which I previously blogged about here) on sports doping to get a flavor of some of these issues.

Ross Tucker summarizes what’s at stake well, I think:

The question is, does the right to compete with a possible advantage as a result of masculinization trump the right to fair competition for those without it?   Whose rights are more important, because balancing fairness requires that somebody assign a value to each side's arguments.

The IOC special conference apparently recognized the same trade-off.  According to the New York Times:

Simpson, of Florida International University, said he recognized that some female athletes would find the guidelines unfair. But, he said, “we have to balance fairness to female athletes to fairness to other competitors.”

2nd World Conference, Day 1

Yesterday, we wrapped up Day 1 of the 2nd World Conference on the Hormonal and Genetic Basis of Sexual Differentiation Disorders and Hot Topics in Endocrinology.  There were several good panels with excellent presenters, though (as predicted) I had many “fish out of water” moments.  The high point of the day, for me, came at the end, when a panel chair posed a provocative question: what sort of recommendation, if any, would the audience make to the IOC, if given the chance, about whether intersex individuals such as Caster Semenya could compete in women's athletic competitions?

Most of those who spoke prefaced their comments with the caveat that insufficient information had been released about the Semenya case for the group to opine about her case, specifically.  But some felt that medical and scientific experts should make general recommendations, and that the recommendation should be to allow intersex individuals to compete in women's sports in cases like Semenya's, where the individual identified as female and has been raised as a female.  Some argued that many athletes possess genetic advantages that give them superior athletic skill, and that new genetic sources of such traits are being quickly discovered with new scientific advancements. Given that reality, they asked, why should intersex be singled out as a genetic competitive advantage to be prohibited?

Others would differentiate conditions likely to confer athletic advantage from those unlikely to do so, and condition athletic eligibility accordingly (more on this to follow later).  Finally, some commenters felt that the issue of intersex in sport was not a medical or scientific question, but a social one.  Competitive sport, according to this line of thinking, is based on sometimes-artificial distinctions about what constitutes “fair play.” Those distinctions depend on social notions of fairness and definitions of desirable competitiveness as judged by sports governing bodies – not on medical or scientific opinion.  As such, it is not the place of medical or scientific experts to make such recommendations.

Interested readers might want to read Gina Kolata’s article in Friday’s New York Times on the IOC meeting, which also discusses some of these issues.  That’s all for now.  The beach is just outside the door, and I haven’t even seen it yet – a lapse that I hope to correct later today.  But I have had some mojitos and Cuban food (in addition to learning some new things) so all is not lost.

Miami, Here We Come

I’m thankfully escaping winter for a few days (yes, I know how ridiculous that sounds to Lounge readers in, say, Minneapolis or Chicago, but indulge me: I’m southern and really, really prefer warm weather) for the 2nd World Conference on the Hormonal and Genetic Basis of Sexual Differentiation Disorders and Hot Topics in Endocrinology.  From the conference program (via AP):

The International Olympic Committee will convene a special conference of medical experts to draw up guidelines for dealing with “ambiguous” gender cases in the wake of South African runner Caster Semenya’s sex-test controversy.

IOC medical commission chairman Arne Ljungqvist told The Associated Press on Tuesday that his panel will organize a symposium in Miami Beach, Florida in January to look at gender issues and advise sports bodies how to respond. “Sometimes you come across cases that are uncertain and ambiguous, and it changes from being a sports matter to a medical matter,” Ljungqvist said. “That’s where we need to have a review.”

The move comes amid intense international scrutiny on Semenya, the 18-year-old athlete who won the women’s 800 meters at the world championships in Berlin in August. . . .

The IOC symposium - to be attended by 10 to 15 scientists and sports federation doctors - will take place in conjunction with the 2nd World Conference on Hormonal and Genetic Basis of Sexual Differentiation Disorders, from Jan. 15-17 in  Miami Beach, Fla.

This is a first for me –a pure medical conference – and I’m sure that I’ll feel a bit like a fish out of water.  The other conferences related to law and medicine that I have attended in the past, such as the American Society for Bioethics and The Humanities, had a lot of non-doctors and non-scientists in attendance, including lawyers. 

At the fall ASBH annual meeting in DC, for example, I moderated a panel on Ethics, Policy, and Human Fertility Markets with Aaron Levine (School of Public Policy, Georgia Tech), Lisa Ikemoto (School of Law, University of California-Davis), Rene Almeling (Sociology, Yale), and Jennifer Haylett (Graduate Student, Sociology, University of California-Davis).   Although the panelists hailed from different disciplines, we all pretty much spoke the same language. 

Luckily, I’ll have colleagues Doriane Coleman (law professor, two-time Swiss national 800-meters champion, and co-counsel to Mary Decker Slaney in her fight against doping charges) and Richard Clark (Clinical and Medical Supervisor of the division of Metabolic and Urogenital Diseases at Glaxo Wellcome Research and Development, and an Associate Consulting Professor in the Divisions of Endocrinology, Metabolism and Nutrition and Reproductive Gynecology at the Duke University Medical Center), with whom I’ve been kicking around ideas on the Semenya case, to keep me company (and translate, if necessary).

I, in contrast, as Lounge readers already know, have no athletic ability or relevant medical or scientific expertise, but dislike cold weather and am interested in issues of doping, “cheating,” and intersex in sports.  Stay tuned for an update when I return.

Buy Your Own Species

Or at least the naming rights.  Via Wired Science:

Retired NBA player Luc Longley, who won three straight championships with former Tarheel Michael Jordan and the Chicago Bulls, recently bestowed the name Lebbeus clarehanna (after his 15-year-old daughter, Clare Hanna Longley) on a newly discovered species of shrimp that lives on the southwest coast of Australia.  Anna McCallum, now a doctoral student at the University of Melbourne, discovered the shrimp while working as an assistant on a research boat. Rather than naming it herself, she auctioned the right to name the shrimp on eBay and donated the proceeds to the Australian Marine Conservation Society.  Longley won the auction, with a bid of $2,900.

Selling naming rights to newly-identified species is by no means a novel development. In 2005, the Wildlife Conservation Society raised $650,000 in a one-week Internet auction of a newly identified Bolivian monkey.  And in Monaco in 2007, Prince Albert II hosted a black-tie event at which rights to name 10 newly discovered species of fish were auctioned for more than $2 million, raising money for conservation efforts in eastern Indonesia (bidders in that auction had to pledge to name the species after people and not corporate entities).  These days, conservation groups, universities, and museums frequently auction naming rights to newly-identified species as a fund-raising move, though this appears to be the first purchase by a former NBA player (Longley has been involved in marine conservation efforts before).

The new trend in naming rights has interested both the public and corporate interests (see, for example, the GoldenPalace.com Monkey and the spiny worm named after the Nokia slogan "Connecting People").  Yet others worry about such commercialization of science. 

Some scientists contend that, given the scarcity of government funding and the increasing threats to biodiversity, squeamishness over naming rights is a luxury the scientific community can’t afford.  But others, such as Dr. Ellinor Michel, executive secretary of the London-based International Commission on Zoological Nomenclature, contend that “once you start putting prices on things, the basic economic rule is that if it's something people want to buy, you manufacture more. And in principle, you shouldn't manufacture species."

Moreover, according to Michel, most new species come from developing countries, which grant research permits to scientists.  If scientists and non-profits outside of those countries make money through selling naming rights to the species, the country may feel cheated and cancel research permits.

If any Lounge readers are pondering what to buy me as a holiday gift, a species named after one of my articles or book chapters would be most welcome.  I wonder if it would impact the SSRN downloads?