The Faculty Lounge

Sunny Samaritans’ Suit Survives

(Yes, I am entertaining myself with alliteration as we slump towards the end of the semester)

U.S. District Judge Saundra Brown Armstrong has refused to dismiss the class action suit against ASRM (the American Society for Reproductive Medicine), SART (the Society for Assisted Reproductive Technology), and all clinics and egg-donor agencies that agreed to follow their pricing guidelines.  (I’ve uploaded the order here: Download Order denying mtd)  The suit alleges that the caps the societies have imposed on permissible oocyte compensation are per se illegal. 

As regular Lounge readers may recall, this is a case about which I’ve blogged quite a bit, and I wrote a law review article in 2009 arguing that the ASRM-SART Ethical guidelines were simply horizontal price-fixing of the type long considered per se illegal in other industries.  And, as I noted of the ASRM-SART motion to dismiss shortly after it was first filed back in July of 2011, “this sounds suspiciously like the standard, and typically unsuccessful, professional association defense.”

As a refresher, ASRM guidelines state that any payment by a member clinic to an egg donor in excess of $5,000 requires justification, and any donor payments above $10,000 "go beyond what is appropriate." The societies claimed that the pricing guidelines were not a per se violation because they were motivated by ethical concerns, rather than by a desire to enrich the societies or their member clinics and agencies.

According to the motion to dismiss, the maximum price rules serve several salutary functions: (1) they protect the health and safety of egg donors and infertile patients by reducing their incentive to hide medical information, (2) they resolve "social welfare concerns" about the exploitation or undue inducement of egg donors, (3) they protect against the devaluation of human life, and (4) the price caps provide access to donated eggs for infertile couples with limited economic means.  Regular Loungers are already aware of my views on these arguments, and those of you new to that debate can catch up by following the links below.  Judge Armstrong concluded that these issues were debatable and denied the motion to dismiss, refusing to hold as a matter of law that per se analysis should not apply to the societies’ pricing guidelines.

Judge Armstrong also addressed one argument under the rule of reason analysis that I had not noticed in the pleadings: ASRM and SART attempted to define the relevant market to include numerous other "alternative income-generating opportunities" that are "close substitutes for egg donation," including “blood, platelet, or plasma donation or paid clinical trials by hospitals, universities, companies, or research institutions.”  Really??  I’ll anxiously await the evidence on that.  The Judge refused to settle this at the pleading stage as well and denied the motion to dismiss under rule of reason analysis. 

I will provide further updates on the case as I get them and many thanks to my colleague, Barak Richman, for forwarding the latest news on this front.

Related Posts:

ASRM Seeks Dismissal of Egg Donor Suit

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

(Image source)

More Organs & Inducements

I promised to talk a bit more about the Organs & Inducements symposium that I mentioned earlier.  I’ll refrain from giving much detail about individual papers at this point, as many of the authors will be substantially revising their papers over the summer and I don’t want to misrepresent them.  But I will give some detail about how the conference came into being, about how Phil Cook and I conceived of the conference theme, and how we settled on the concept of “inducements.” And I’ll be back later to talk more about specific papers as the authors have a chance to revise and submit their papers to Law & Contemporary Problems for publication.

Phil and I began talking a year or two ago about our overlapping interests – mine in what I frequently refer to as “taboo trades,” and his in what might be referred to as the economics of “vice.”  For example, Phil has written extensively on issues of gun control (Gun Violence: The Real Costs, Oxford University Press, 2000), state lotteries (Selling Hope: State Lotteries in America, Harvard University Press, 1989), and alcohol (Paying the Tab: The Costs and Benefits of Alcohol Control, Princeton University Press, 2007).

Anyway, Phil and I began discussing the many recent advances in organ donation, none of which have managed to eliminate the waiting list.  We wanted to convene a discussion designed to tackle what we thought of as “next steps” in the long-running debate about methods to increase the supply of transplantable organs.  We purposely employed the term “inducements,” rather than “incentives,” believing that the term “incentives” had become too closely tied with organ markets in the traditional sense – compensation for organs with money, vouchers, or some close cousin.

In contrast, we viewed the phrase “inducement” as potentially signifying something much broader and more inclusive.  According to Merriam Webster, an inducement is simply “a motive or consideration that leads one to action.”  And, as we thought about recent advances in organ donation and organ policy reform that most intrigued us, most did not involve monetary or similar compensation, but rather more subtle means to facilitate organ donation.

Thus, from our perspective, inducements could range from public awareness campaigns exhorting people to donate and informing them of the severity of the organ shortage, at one of the spectrum, to outright organ auction markets at the other end of the spectrum.  But we largely expected authors to address the many interesting variations in inducement in between those two extremes, and that is exactly what our participants did.  The papers covered, for example, experiments regarding changes in the framing of the donation decision; the analysis of possible changes in the consent regime – for example, opt in versus opt out; priority schemes, such as that in Israel, under which priority for an organ is given to one who has agreed to be a donor; reciprocal-exchange schemes such as swaps and NEAD chains; other barter-based systems that might expand the range of tradable items to include other types of charitable gifts; and markets tightly constrained through government oversight with prices set by regulation, rather than by supply and demand. 

In other words, debates about organ policy reform have often been framed in terms of a market versus gift dichotomy, with a focus on the preservation of “altruism” -- a framing that Kieran Healy and I have previously criticized as misleading and unhelpful.  As we have argued, and as the contributions of our symposium authors highlight, the real world is far more complex than this, with many shades of gray.  And donors act for a variety of motives, only some of which are “altruistic” in the pure sense of that term. 

We also encouraged our participants to go a step further, to address regulatory next steps.  If inducements are permissible, what kind?  Are all inducements created equally? Or are some more acceptable than others? And why?

Do all potential donors receive an equal inducement? Why or why not?  Who is entitled to apply the inducement? Government? Private actors? Medical professionals? Transplant recipients?

In other words, in a system with at least some inducements – including our present system – what safeguards are necessary to assure us that the system is safe, fair, efficient, and egalitarian?  And do we value each of those things equally or not?

Those are the questions we hoped to engage over the two-day symposium and our participants did not disappoint.  Naturally, I’m biased, but I found the conversation both energizing and challenging.  I think that others did too.  And I’m confident that some excellent papers will emerge from this symposium. 

Keynote speaker, Al Roth, discussed his work on organ donation, including recent experiments with fellow Organs and Inducements participant, Judd Kessler.  You can read Al’s write-up of the event at his Market Design blog. 

Organs & Inducements

 

I, of course, meant to post this in advance of the symposium, but underestimated the amount of time and attention last minute details would consume (what’s that phrase about older but not wiser?).  So I’m just getting to it now. 

 

Anyway, I think that the event was a big success and I will have more to say about it in the coming days.  For now, I’ll just post the symposium abstract, along with a thanks to all the many wonderful participants who made this event a success. 

More to follow . . .

Symposium Abstract:

The need for human organs for transplantation far outstrips supply. As a result, a large literature has developed debating possible means to address the gap. Suggestions range from procurement system improvements and changes in the consent regime, in the case of cadaveric organ donation, to inventive exchange systems (such as swaps and NEAD chains) and financial incentives of various sorts, in the case of live organ donation.

In Organs and Inducements, contributors build on existing debates on mechanisms designed to bridge the gap between organ demand and supply, to address deeper questions regarding inducements to donate.   Among the varied possible mechanisms of persuasion and incentives at society’s disposal, what are the relative advantages and disadvantages of each?  What are the larger ethical, economic, sociological, and psychological issues raised by these different types of inducements, including non-financial inducements?  Why are some accepted by the law and society at large, while others are not?  Do the lines we’ve drawn among permissible and impermissible inducements make sense, given the concerns those rules are meant to address?

 Related Posts:

More Organs & Inducemetns

Teaching Prisons and Slavery (Or, This is Not About Django)

This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons. 

Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law.  I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education:  We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.

I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.  

The project tells (what I hope to be) a new story about the history of incarceration in the early national/antebellum south and the emergence of Virginia’s administrative regime, while also offering fresh insight into how these institutions shaped – and were shaped by – the institution of slavery.  Antebellum Virginians relied upon jails to perform functions separate and apart from holding accused persons awaiting indictment or trial; such facilities became sites for the realization of the state’s interests in slave property security. Jails were frequently used throughout this period as holding pens for slave traders; as clearinghouses for putative owners’ property claims in suspected fugitives; and as marketplaces for violence, as slaveowners sought – and paid for – corporal and terroristic punishment to be inflicted upon their recalcitrant bondsmen. No similar security measures were implemented for other forms of antebellum property, reinforcing for us (as modern readers) that slave property was peculiar and that institutions of law helped to create and reinforce this peculiarity. 

Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.

Custom, Contract, and Kidney Exchange

Last year, I blogged a few times about Duke’s year-long Custom and Law project, which culminated in a Duke Law Journal symposium in February.  Kieran Healy and I presented a draft paper on nonsimultaneous, extended, altruistic donor (NEAD) chains at the conference (with commentary by Arti Rai), which we have just posted to SSRN.  Though I’m biased, of course, I think that the paper is a neat addition to the relatively new, but growing, research on NEAD chains, and does a pretty good job of critically evaluating what we view as overly simplistic characterizations of NEAD chains as either gifts (and thus good) or market exchange (bad in the minds of most, though not all, observers).

In a NEAD chain, an altruistic donor freely gives a kidney to a patient, initiating a chain of transplants among a series of donor-patient pairs. Each donor has a kidney that is incompatible with “her” patient, so instead each donates her kidney to the compatible patient of another donor-patient pair, forming the next link in the chain. NEAD chains are a relatively recent innovation in the transplant system, and they seem set to become more common in the future.

In our paper, Kieran and I ask the question: What sort of exchange is this?  And, does it matter?

In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to “pay it forward” rather than the obligation to reciprocate directly with the giver. Generalized exchange has long been seen as an extremely effective customary means of generating commitment and solidarity in social groups, because everyone participates in the exchange of values.  

This imagery of solidarity and collective commitment generated through a chain of gifts has been important to the success of NEAD chains. In particular, the presence of a gap in time between exchanges introduces some standard elements of gift giving, especially the social obligation to reciprocate (pay forward) and the problem of trust that arises along with it.

Looked at from a different point of view, though, a NEAD chain is not like gift exchange at all. Instead, it resembles a string of promises and commitments to deliver something in exchange for some valuable consideration—in short, a series of contracts. After the first free donation, each donor-patient dyad in the chain in effect promises to pay the donor’s incompatible kidney forward upon receipt of a compatible kidney for the patient. Isn’t this the essence of contract?

But Kieran and I argue that the attempt to starkly categorize NEAD chains as either gift--with the attendant virtues of expressivity, warmth, and social solidarity that are taken to flow from exchange built on altruism and sharing—or contract, with the attendant self-interested, price-driven, instrumental orientation associated with market-based exchange—is misplaced.  We emphasize that, although both generalized exchange and formal contract can be thought of as culturally available schemas for governing the exchange of kidneys in NEAD chains, both are imperfect fits for the intricate realities of NEAD-chain exchange. Gift- and contract-based exchange models do, however, provide a rich cultural resource to participants and professionals seeking to frame the social meaning of NEAD chains.  

In the end, we conclude, both gift and contract have the potential to act as schemas for NEAD exchange. Neither fit perfectly. Gift exchange is the more familiar template associated with organ transplantation, but contract also has the potential to symbolically frame NEAD exchange. Despite being rejected as inappropriate by some organizational actors, contract-like forms appear implicitly or explicitly at several points in the NEAD donation-and-exchange process—not, we emphasize, because anyone expects to legally enforce them, but rather, it seems, for their ability to powerfully symbolize credible commitments by participants. Whether this symbolic use of contract will continue to expand is an empirical question.

One result of the current cultural and legal ambiguity about the nature of NEAD chains within this imaginary gift-market divide, we argue, is that the actual operation of NEAD chains has, so far, tended to fall back onto relatively simple forms of simultaneous direct exchange.  Even in the much celebrated sixty-person (thirty-donor) chain detailed in the New York Times in February, only five links involved a pay-it-forward delay of more than twenty- four hours. We suggest that if NEAD chains are to realize their full promise of true large-scale, non-simultaneous, extended exchange, these legal and cultural ambiguities will need to be finessed in practice by the coordinating agencies and the participants themselves.

You can download the full paper here, and we welcome your feedback.  

Top Image: People Magazine via Al Roth

Dispatch from the Archives: Can Slavery Ever Be Voluntary?

The Library of Virginia has a wonderful blog ("Out of the Box") where archivists tell the stories of people, places, and things found among the library’s collections. This week, the blog told the story of Jane Webb, a mixed-race free woman who, in 1704, offered to serve 7 years as an indentured servant with the owner of her enslaved lover in consideration for her lover’s freedom and permission to marry.  In addition, Webb promised to let the owner (Thomas Savage) “have all the children that should be bornd [sic] upon her body” during the period of servitude.  The owner agreed, and (remarkably) a written contract was executed between Savage and Webb.  At the conclusion of the 7 years, however, Savage refused to release either Webb’s husband or their children; Savage claimed that the agreement entitled him to all of Webb’s children, for a period of time exceeding her indenture.  Over the next 16 years, Webb and Savage battled in successive court cases in which each of them claimed the right to Webb’s children and her (now) husband.  In one of the cases, Savage claimed that Webb’s poverty rendered her unfit to care for her children (as “they may be induced to take ill courses”).  Ultimately, Savage (and his heirs) succeeded: Webb’s case was dismissed in 1727, and, despite her efforts, her children and husband remained bound to Savage.

The case is an interesting on a number of legal/academic fronts (property, evidence, labor, children & the law, etc.) – I’m most interested in Webb’s attempt to bind herself and her unborn children in exchange for her betrothed.  Scholars of slavery in the U.S. have wrestled insufficiently with what can be called “voluntary” servitude and enslavement. For free blacks during this era, a web (no pun intended) of hostile legislation threatened to plunge them into perpetual slavery for even minor infractions; faced with the prospects of familial separation and geographic exile (if trafficked further South), free blacks throughout the South petitioned legislatures and courts requesting enslavement.  Through this mechanism, free blacks transformed themselves into property – and their petitions provide critical insight into the role of law, race, labor, family, and limits of “freedom” in the lives of the nominally free.  Can slavery ever be voluntary?  If yes, what are the implications for our Thirteenth Amendment jurisprudence and courts' refusals to enforce personal service agreements?  I look forward to your thoughts on this.

Congratulations to Al Roth!

Congratulations to Al Roth, co-winner of the 2012 Nobel Prize in economics for "the theory of stable allocations and the practice of market design."  In an earlier post, I labeled Al the ““pied piper of repugnance,” due to his work on repugnance, kidney exchange, and similar taboo trades.  His research is nearly always cited as one of the best examples of the use of sophisticated economic tools to find solutions to daunting real-world problems, from the shortage of available kidneys for transplantation to the placement of students in urban school districts to the matching of medical residents with hospitals. 

As I’ve mentioned before, one of the things that you should know about Roth (in addition to his important market design work) is that he is one of the most generous people you’ll ever meet.  Roth was at Duke in 2011 to discuss a paper, Organ Allocation Policy and the Decision to Donate, and during his one-day visit managed to present his own paper, speak to my Taboo Trades seminar about kidney matching, meet with Duke students studying the market for judicial clerks (Al’s prior work includes the study of judicial clerkship markets, with co-authors Richard Posner and Christine Jolls), provide guidance to various faculty (including me) about their own research projects, and hang out in the faculty lounge and at dinner acting like a completely normal person.  None of this really should have surprised me – Al’s support and generosity with graduate students is well known, and he had been incredibly approachable in my prior interactions with him.  But it did impress me.

Anyway, it’s always nice to see great things happen to deserving people.  So, congratulations to Friend of The Lounge, Al Roth! 

Prior related posts:

Al Roth: The Pied Piper of Repugnance?

Al Roth, Market Designer, in August Forbes

Scalping The Dalai Lama

Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault). Also, Thanks a Lot, Toshiba

So I've just posted a draft paper on SSRN, "Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem," the first of a pair of companion articles on, well, how we regulate knowledge production -- focusing on IRBs in particular and on the peculiar risk-benefit standard that pretty much every federal agency (and the governance frameworks of many other countries) requires them -- futilely, I argue -- to perform. As soon as I finish navigating the ExpressO/Scholastica maze, I'll be blogging about some of issues raised in this paper, its companion, and "Legal Experimentation: Legal & Ethical Challenges to Evidence-Based Law & Medicine," a workshop (and edited volume) I'm organizing this spring.

But for now, a few brief thoughts:

(1) I hate the title of the draft paper. It's hideous. I long for the concise elegance of Prison Vouchers or some of the others mentioned here. The companion paper is tentatively titled "Research Contracts." That's followed by the usual boring descriptive subtitle, of course, but I consider it a victory at least to have begun with the kind of title I aspire to. For the posted draft, though, I can't even manage to do that. "Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault)" is a fair description, but seems a little glib for a law review article. So I'm all ears if anyone comes up with a less jargonistic, sleep-inducing title. (More importantly, and in all seriousness, I'm very open to feedback on the paper itself.)

(2) Toshiba is on my s*** list. Partly because I'm a die hard Mac person, but mostly because of Toshiba's latest ad campaign, embedded above, which stereotypically portrays research participants as the passive objects of mad scientists -- that is, as proverbial guinea pigs. Like other historically disempowered groups, career research participants have reclaimed that moniker. But Toshiba's customers don't know that, and its ad helps perpetuate the image of research participation as terribly dangerous and degrading and as something that only someone who is either irrational or desperate (and willing to be exploited) would agree to. In reality, research participants can and do initiate research, and in the increasingly popular Citizen Science and Quantified Self movements, the distinction between researcher and "subject" disappears altogether. It's also closer to the truth (ahem, Time Magazine) to say that a lack of experimentation has turned millions of us into human guinea pigs in the realms of health care and legal services, and as the subjects of any number of laws, regulations, and policies (see the "Legal Experimentation" prospectus, linked above). /Rant

Kidney Now!

 

HT: Al Roth

Flynn V. Holder Rehearing Denied

Earlier this week, the 9^th Circuit denied the government’s petition for rehearing and rehearing en banc in Flynn v. Holder, the bone marrow donor compensation case that I’ve discussed before here, here, and here.  The order is here.  Download Flynn v Holder AMENDED

It includes an amendment to the opinion to reject the government’s argument -- contained in the petition for rehearing but not its initial brief -- that because Congress defined “bone marrow” in another statute to include cells found in peripheral blood, “bone marrow” should be given the same meaning in NOTA.  That always seemed like a weak argument to me, given the very different purposes of the two provisions, so I’m happy to see it rejected. 

Thus, for now at least, it seems that Flynn v. Holder is over.  There is, of course, the possibility of appeal or a request for legislative action, though, given the narrow 9^th Circuit holding, perhaps the government will simply let it be (a possibility discussed in this post and in the comments to it). 

My thanks to Glenn Cohen for the tip.

 

Carrots, Strings, and Power: The New York Times on Ruth Grant’s Strings Attached

My fabulous colleague, Ruth Grant’s, new book, Strings Attached, is reviewed in yesterday’s New York Times.  As a bit of background, Ruth is a Professor of Political Science at Duke University, specializing in political theory with a particular interest in early modern philosophy and political ethics. She is the author of John Locke's Liberalism and of Hypocrisy and Integrity: Machiavelli, Rousseau and the Ethics of Politics. She is also the editor of two collections of essays; Naming Evil, Judging Evil and In Search of Goodness.

But it is her newest book, Strings Attached, that currently has the NY Times’ attention, and mine as well.  In it, Grant frames the ethics of incentives within a broader framework that I find infinitely richer than most that I have come across recently.  Specifically, Grant frames the ethics of incentives within an analysis of power.  In doing so, Grant insists that incentives are more than just a voluntary bargained-for-exchange.  Instead, they are one of the mechanisms employed to get people to do things that they otherwise would not.  As such, they are – like all kinds of power – subject to abuse. 

One of the things that I particularly appreciate about Grant’s analysis is the triad of coercion, persuasion, and incentives that Ruth sets up – all three are exercises of power and all three entail ethical considerations.   All three are also judged under the same standards of legitimacy of purpose, voluntariness, and effect on the character of the parties involved. 

Ruth is quite a bit more skeptical of incentives, and quite a bit more accepting of persuasion, than I am, but her critique of some of the assumptions regarding incentives is important and, for me at least, eye opening.  For example, her historical treatment of the rise of incentives and the insight that incentives are often employed in the context of an authority relationship – adult/child, employer/employee, and government/citizen, for example – is a helpful means of getting a handle on what it is about some incentives that instinctively rub many people the wrong way. 

I am not yet persuaded by Grant’s preference for persuasion versus incentives as a means of facilitating democratic deliberation and decision-making.  Says Grant:

When incentives are employed, there is no need to convince people that collective goals are good or to motivate them to pursue those goals by appeals to rational argument, personal conviction, or intrinsic motivation.  Experts and powerful elites can thus direct institutions and shape people’s choices without the sort of public discussion and consent that ideally characterize democratic processes and decision-making. 

But when we move away from ideal democratic processes to real ones, I am not so sure that the types of persuasion employed by powerful elites or the decision-making processes of those subject to their influence are so benign, or that they fare so well as compared to incentives. 

One last comment on crowding out, which I think is more complex than one would gather from the book and the Times review.  There is a large literature on crowding out, some of which finds support for the crowding out theory and some of which does not.  Moreover, the findings appear to be very sensitive to experimental conditions, such that it is not always clear what factors are driving the experimental outcomes.  Finally, any crowding out effects can sometimes be overcome through other interventions, such as an option to donate any monetary rewards to charity.  In other words, crowding out appears to be a very complicated phenomenon and, in most settings, at least, it would, to my mind, be premature to conclude that we might predict with confidence the outcome of a well-designed incentive structure.

To illustrate, the Times discusses a study, referenced in Strings Attached, in which women offered cash to donate blood were almost 50% less likely to give blood than women who were offered no money.  Male subjects exhibited no such crowding out.  (The NY Times references a “study of British women,” though I believe they mean this study, which is also the one Ruth cites to in the book).  But there is no mention that the study actually measured the willingness of subjects to undergo a health examination, which was a precondition to donate blood, rather than actual blood donations (a test condition that could operate differently on men and women), that the monetary offer was only about US $7, and that the crowding out effect disappeared when subjects were given the option to donate the proceeds to charity.

A more recent NBER working paper by Nicola Lacetera, et. al., Rewarding Altruism? (released after the book was in press, I believe), a natural field experiment involving nearly 100,000 individuals, contradicts these findings.   Lacetera finds a large, positive effect of economic incentives on blood donations, with limited or no crowding out in both the short and long term. They find no gender effects.  All of this is just to say that crowding out appears a complicated phenomenon, and one that we’re still learning about.

Don’t be fooled into thinking that because Grant is a respected political theorist and the book deals with weighty ethical issues it will be dry or abstract.  Grant’s theories and examples are extraordinarily timely and relevant.  The section on IMF loan conditionality caused me to reframe the entire Greek debt crisis debate in terms of coercion, persuasion, and incentives.  And the sections on recruiting medical research subjects (which, perhaps surprisingly, Grant finds relatively benign) and pleas bargaining will be of interest to those working on medical ethics and the criminal justice system, respectively.  A highly recommended read!

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.

Flynn v. Holder – The Fight Continues

Via Al Roth comes news that the government is fighting the recent Flynn v. Holder decision, which held that bone marrow donors could be legally compensated (for peripheral blood stem cells obtained through apheresis).  According to press reports (here and here), the Department of Justice has asked the Ninth U.S. Circuit Court of Appeals for en banc review of the Dec. 1 panel ruling. I blogged about the case earlier here.

Interesting timing, from my perspective: my Taboo Trades seminar is discussing Flynn v. Holder next week, concluding a two-week segment on blood.  I vary the readings from year to year, but this year assigned Titmuss, Arrow’s response to Titmuss, Singer’s response to Arrow, Lacetera, et. al, and Flynn v. Holder.  I’ve included full cites below the fold for anyone interested.

I’m sure I’ll be back again with more on the case and/or our discussion of taboo trades more generally.  This year’s group seems particularly bright and interesting (yes, I do say that every year . . . but every year it’s true).

I’m actually a bit surprised that the government continues to fight this, especially through the courts (and especially on a 3-0 decision), as opposed to through the legislature, though I’m certainly no expert on appellate litigation strategy.  I note that in his recent New England Journal of Medicine article on the case, Glenn Cohen stated that, though the government could ask for a rehearing en banc:

Given the narrowness of the Ninth Circuit holding, however, the government may be content to leave it in place and instead seek redress through the legislative process — or merely accept the formation of markets for peripheral-blood stem cells. Nothing in the Ninth Circuit decision foreshadows the creation of markets in any other types of organs.

And I guess that’s what I figured as well.  Perhaps some of our many Loungers with DOJ or other government experience will have thoughts to share on the government’s possible strategy, which I welcome.

 

 

Now back to that “how important are citations?” debate . . .

Via Henry at Crooked Timber comes news of a recent article in Science (pay wall, full copy here), Saudi Universities Offer Cash in Exchange for Academic Prestige:

At first glance, Robert Kirshner took the e-mail message for a scam. An astronomer at King Abdulaziz University (KAU) in Jeddah, Saudi Arabia, was offering him a contract for an adjunct professorship that would pay $72,000 a year. Kirshner, an astrophysicist at Harvard University, would be expected to supervise a research group at KAU and spend a week or two a year on KAU’s campus, but that requirement was flexible, the person making the offer wrote in the e-mail. What Kirshner would be required to do, however, was add King Abdulaziz University as a second affiliation to his name on the Institute for Scientific Information’s (ISI’s) list of highly cited researchers.

“I thought it was a joke,” says Kirshner, who forwarded the e-mail to his department chair, noting in jest that the money was a lot more attractive than the 2% annual raise professors typically get. Then he discovered that a highly cited colleague at another U.S. institution had accepted KAU’s offer, adding KAU as a second affiliation on ISIhighlycited.com.

Kirshner’s colleague is not alone. I have learned of more than 60 top-ranked researchers from different scientific disciplines—all on ISI’s highly cited list—who have recently signed a part-time employment arrangement with the university that is structured along the lines of what Kirshner was offered. Meanwhile, a bigger, more prominent Saudi institution—King Saud University in Riyadh—has climbed several hundred places in international rankings in the past 4 years largely through initiatives specifically targeted toward attaching KSU’s name to research publications, regardless of whether the work involved any meaningful collaboration with KSU researchers. 

Al Arabiya News reports:

According to several Saudi academicians, the report published this month in Science Magazine under the title “Saudi Universities Offer Cash in Exchange for Academic Prestige” ─ which accused both universities of paying researchers to cite their names as a second affiliation ─ is jeopardizing the reputation of two of Saudi Arabia’s most prominent institutions especially that the magazine is one of the most credible in the world. . . .

The two universities have already denied allegations made by the magazine, said Rahman al-Salhabi, head of the Scientific Research Program ay King Abdul Aziz University Abdul.

“Officials at both universities admitted to ongoing cooperation with several foreign researchers but stressed that they are doing real work together and not just making them put the universities’ names on their research for money like what the magazine claimed,” he told Al Arabiya.

The article concludes:

“A university cannot be founded on propaganda, but on what it really achieves.” 

Hmm . . . back to my holiday law porn reading.

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

 

Secrets of a Sperm Stealer?

A resident of Allegheny County, New York is suing a fertility clinic and medical lab in Texas on the grounds that the clinic used his stolen sperm to inseminate his girlfriend.  (For a copy of the complaint, see here.) Jamie Pressil alleges that "[d]ue to the unexpected birth of his children caused by Defendants, Pressil suffered severe mental anguish and incurred economic harm due to substantial child support payments.  

The factual background is a bit murky, but the alleged basic storyline appears to be this: Mr. Pressil's former girlfriend and domestic partner, Ms. Anetria Burnett, supposedly secreted Mr. Pressil's used condoms to a fertility clinic, which then used Mr. Pressil's sperm to inseminate Ms. Burnett.  Ms. Burnett subsequently gave birth to twins. Mr. Pressil took a DNA test that proved he was the father and then began paying child support of $800 per month. Related news reports are here, here, and here. 

The clinic reportedly has a copy of a consent form allegedly signed by Mr. Pressil, as well as the results from bloodwork allegedly performed on Mr. Pressil around the time of Ms. Burnett's insemination.  The costs of the fertility services were charged to Mr. Pressil's credit card.  See news stories here and here.

In a separate action, Mr. Pressil has been charged with assaulting Ms. Burnett in 2010 (see news story here).

No doubt, there are several factual issues to be resolved.  But if the clinic did in fact use the sperm without Mr. Pressil's consent, might the clinic have violated Mr. Pressil's constitutional rights (assuming one could show state action)?  Glenn Cohen has suggested a constitutional right not to become a parent in his Stanford Law Review article, The Constitution and the Rights Not to Procreate.  And if Ms. Burnett did take Mr. Pressil's discarded condoms, did she steal his "property"?  Does it matter how and where the condom was discarded?  Does any "theft" only become legally significant if stolen sperm is "converted" into children?

For Love Or Money Is Here!

The conference volume For Love Or Money: Defining Relationships in Law and Life has finally been published, yeah!  The introduction is here.  My three posts, done just before and after the conference and discussing the event are here, here, and here.  The table of contents is below.

Gifts in Name Only: Kieran Healy on Markets for Organs

Via Al Roth comes news of this Kenan Institute for Ethics profile of my colleague, Kieran Healy, which explores the question: Should there be a market in human organs? 

But what is really wrong with having a market—a system for buying and selling—our own organs? Certainly, there’s little doubt that it would have some unpleasant aspects. There would be many cases where a wealthy individual bought a kidney from someone much poorer. The prospect of the poor literally giving up their bodies to the rich is enough to make many people recoil in disgust. . . .

In the end, there is less of a division between gift-giving and market exchange than we might think. Incentives are not incompatible with the kind of moral obligations associated with donation. We may wish for a bright line between virtuous gifts and selfish markets, but the boundary is constantly crossed, in both directions. 

For example, gifts can be easy vehicles for getting people in your debt, or obtaining something for free, and people calculate very precisely what the “right” amount to spend on a present is when birthdays or holidays come around. On the other hand, markets routinely have strongly moralized aspects, as we take care to pay people in ways that signal our esteem for them. We discreetly reimburse people for their time, or give them an honorarium, say, rather than paying them in cash by the hour. 

A lawful market in organs would probably be considered more legitimate if it resembled a gift exchange, as we see already taking place in the case of human eggs, where the language of donation predominates even though the eggs are bought and sold and prices are widely advertised. However, even today, with the exception of kidneys, you can’t get a transplant unless you have the insurance to pay for it, despite others’ willingness to donate their organs. So why should people feel any obligation to give to a system that serves those who need it so poorly?

I agree with Kieran that financial incentives for human organs are more likely to win social acceptance if they resemble the gift-based allocation systems that have already gained social legitimacy. And the oocyte market – a clearly market-based system with the trappings of gift, including the language of donation -- is a good example of this phenomenon. 

In fact, as I’ve discussed before, this disconnect between market realities and gift narrative is an important feature of many taboo trades.  By normalizing otherwise jarring transactions, gift narratives may facilitate markets that otherwise would stagnate under the weight of social disapproval. For those, like me, who believe there is social value in enabling the infertile to reproduce or those dying from kidney failure to live – and, by corollary, allowing those who consider themselves better off by the receipt of compensation in exchange for an egg or kidney – to do so, this is a good thing. 

At the same time, though, the oocyte market example also illustrates the costs of denying market realities in favor of the pretense of gift exchange -- gifts in name only: 

(1) Legal misfit

Gift-based exchange regimes are typically governed by a different set of legal rules than are market-based exchange regimes.  We tend to recognize, for example, the possibilities for opposing interests and opportunistic behavior in a regime of market-based exchange.  And many legal rules governing market-based regimes are designed with these considerations in mind. In contrast, we often assume (incorrectly, especially when the gift is one in name only) an absence of opportunism and an alignment of interests in the case of gift-based exchange. 

(2) Social stereotypes

I do not know if, or how, this would play out in organ markets, but it has for some time concerned me with respect to reproductive markets, especially the oocyte and surrogacy markets.  Scholars have long noted the presumption that many services provided by women, including reproductive and domestic labor, should be provided altruistically, despite their high economic value.  Says Mary Anne Case, for example:

Much of what women have market power over, such as their sexual and reproductive services, they have long been expected not to commodify at all. Even when monetary compensation is allowed, it is often kept low and female providers are expected to be interested in rewards other than money.

The continued insistence that egg donors are, and should be, motivated primarily by altruism and the desire to help others, rather than by the desire for monetary compensation, threatens to reinforce gendered notions that the market activities of women are driven in large part by altruism and that women as a group are uninterested in reaping the full gains of trade from the provision of their goods and services. 

The comparison to sperm markets is especially telling. The insistence on the altruistic motivations of egg donors is in stark contrast to the presumed motivations of sperm donors, who are recruited through materials that ask, “Why not get paid for it?” and advertise, “your sperm can earn!” 

More directly, as Rene Almeling has documented, there is significant societal pressure for egg donors to profess altruistic motives, and oocyte donor agencies and consumers dislike egg donors who appear overly money-motivated. Do these attitudes affect compensation negotiations? Are prospective oocyte donors able to drive the hardest economic bargain without signaling a disqualifying character flaw—an overriding interest in monetary compensation? In the absence of accurate oocyte pricing data it is impossible to know for sure, but the possibility cannot be ignored.

(3) Market dysfunction

Treating market-based exchange systems as if they were gift-based can lead to a variety of distortions.  For example, strict limitations on market exchange for products and services destined to be undersupplied by gift-based systems may lead to black and gray markets, whose participants are left without the regulatory protections that legal markets might provide. 

And in the oocyte market, the narrative of donation has for many years distorted analysis of the market, facilitating open agreements to limit egg donor compensation of they type long considered per se illegal in less emotionally-charged settings.  But rather than accepting the oocyte trade for what it is – a profitable industry -- the starting assumption has been that the egg market must differ from other markets because egg donors are engaged in a form of philanthropy that distinguishes them from suppliers in other industries. These restrictions on egg donor compensation are only now facing legal challenge, prompting a re-evaluation of the ethics of donor compensation limits among many in the fertility industry.

…………………………….

In the end, gifts in name only represent a trade-off.  On the one hand, the language of donation coupled with the realities of market-based exchange has the capacity to legitimate otherwise troubling exchanges, facilitating life-saving operations and parenthood for the infertile.  At the same time, gift-in-name-only exchange has consequences for the social, legal, and market structure of these industries, and for the consumers, producers, and others, including the public-at-large, affected by them.

CA Baby Selling Ring Busted

A California lawyer specializing in reproductive law and several others pled guilty on Tuesday to conspiracy to commit wire fraud in connection with what federal prosecutors have labeled a “baby-selling ring.” 

From the plea agreement:  (Download Plea Agreement)

 You can download the full plea agreement here  Download Plea Agreement

Ironically, the primary defendant, Theresa Erickson, a California lawyer specializing in reproductive law, once maintained a reasonably popular blog site dedicated to reproductive law issues and developments that I sometimes read.

(HT: Spin Doctor)

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