Person: Cohen, Glenn
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Cohen, Glenn
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Publication Can the Government Ban Organ Sale? Recent Court Challenges and the Future of US Law on Selling Human Organs and Other Tissue(Wiley Periodicals Inc., 2012) Cohen, GlennOn December 1, 2011, in Flynn v. Holder, a panel of the US Court of Appeals for the Ninth Circuit upheld the National Organ Transplant Act of 1984 (NOTA) from a constitutional challenge, but interpreted the act such that its prohibition on sale did not encompass “peripheral blood stem cells” obtained through apheresis. Rehearing of the case was denied on March 27, 2012. The Obama administration must now decide whether to pursue its challenge in the US Supreme Court. This article explains the litigation, its significance and uses it as a backdrop against which to understand the history and future trajectory of the laws governing selling organs and other human tissue.Publication Sperm donor anonymity and compensation: an experiment with American sperm donors(Oxford University Press, 2016) Cohen, Glenn; Coan, Travis; Ottey, Michelle; Boyd, ChristinaAbstract Most sperm donation that occurs in the USA proceeds through anonymous donation. While some clinics make the identity of the sperm donor available to a donor-conceived child at age 18 as part of ‘open identification’ or ‘identity release programs,’ no US law requires clinics to do so, and the majority of individuals do not use these programs. By contrast, in many parts of the world, there have been significant legislative initiatives requiring that sperm donor identities be made available to children after a certain age (typically when the child turns 18). One major concern with prohibiting anonymous sperm donation has been that the number of willing sperm donors will decrease leading to shortages, as have been experienced in some of the countries that have prohibited sperm donor anonymity. One possible solution, suggested by prior work, would be to pay current anonymous sperm donors more per donation to continue to donate when their anonymity is removed. Using a unique sample of current anonymous and open identity sperm donors from a large sperm bank in the USA, we test that approach. As far as we know, this is the first attempt to examine what would happen if the USA adopted a prohibition on anonymous sperm donation that used the most ecologically valid population, current sperm donors. We find that 29% of current anonymous sperm donors in the sample would refuse to donate if the law changed such that they were required to put their names in a registry available to donor-conceived children at age 18. When we look at the remaining sperm donors who would be willing to participate, we find that they would demand an additional $60 per donation (using our preferred specification). We also discuss the ramifications for the industry.Publication Publication Making Residency Work Hour Rules Work(Wiley for American Society of Law, Medicine and Ethics, 2013) Cohen, Glenn; Czeisler, Charles; Landrigan, ChrisopherIn July 2011, the ACGME implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law.Publication Rationing Legal Services(Oxford University Press (OUP), 2013) Cohen, GlennThere is a deepening crisis in the funding of legal services in the United States. The House of Representatives has proposed cutting the budget of the Legal Services Corporation (LSC), one of the main funders of legal assistance to America’s poor, to an all time low in inflation-adjusted terms. Other sources of funding, such as Interest on Lawyers Trust Account (IOLTA) are also way down due to low interest rates. More than 135 state and local organizations providing LSC assistance are now in a precarious position. The community was already decimated by the last round of cuts in January 2011, that led to the laying off of 1,226 lawyers and support staff at LSC-funded organizations, and 81,000 fewer low-income Americans receiving aid. This is all occurring at a time of extremely high unemployment and state budget cuts in services supporting low-income people, meaning demand for many of these services is going up. The deepening crisis in funding of legal services only makes more pressing and manifest a sad reality: There is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, this Article will focus on how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone. To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services, that I discuss in greater depth below. Should the Public Defender Service favor offenders under the age of 25 instead of those older than 55? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? How should Connecticut Legal Services prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery? These are but a small number of the difficult questions faced by those who have to ration legal services. Very little has been said as to what principles should govern the rationing of legal services. This is surprising given that civil and criminal LSPs are often funded through a mixture of government funding and charitable support in such a way that they should be answerable on questions of justice, and because their decisions whether or not to support a client is likely to have significant effects on that person’s life prospects. Thus, it seems as though the rationing decisions of LSPs deserve significant ethical scrutiny. In this Article, I seek to remedy this deficit in the existing literature by engaging in a comprehensive analysis of how LSPs should allocate their resources given the reality of persistent scarcity. Luckily, this work does not have to begin at square one. There is a developed literature in bioethics on the allocation of persistently scarce medical goods (such as organs, ICU beds, and vaccine doses) that I use to illuminate the problems facing LSPs and the potential rationing principles they might adopt.Publication My Body, My Bank(The University of Texas, 2015) Cohen, GlennThis essay reviews Kara Swanson’s "Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America" (Harvard University Press, 2014) and uses it as an opportunity to interpolate the history and theory of the commodification of human body parts in America. Swanson’s book is a meticulously researched history of the banking industries in human milk, blood, and sperm in America from 1908 till into our century. It is an extremely useful read for anyone working in the field of bioethics, commodification, and property. It is exhaustive (perhaps occasionally too much so) when it tackles blood and milk banking — the latter a banking system that much less has been written on. It is less good on sperm banking. It deserves much praise and a little critique. I try to give both in this Review. This Review is divided into two parts. The first tries to capture in short form the story Swanson aims to tell. She focuses on the blood banking industry, giving it four of the six substantive chapters, with a chapter and a third for milk and a short chapter for sperm. In my Review I follow a similar path. I also specifically highlight a few of the important contributions of the book, especially in the relationship of product liability law with the development of conceptions of bio-property, something she does deftly that strikes me as quite a new story to tell. The second Part of this Review focuses on critique, layered from milder to deeper, though many of these are disguised praise (in that I see things in Swanson’s account that she may not see!). My critique centers on four elements: (1) she could do more to clarify the role (or lack thereof) for law in the story; (2) the central notion of “the bank” and the idea of a metaphor taken from finance is a bit under theorized in the work; (3) the book could use more dialogue with the commodification discourse more generally, especially its more nuanced articulations (this is the ubiquitous here is how I would have written your book section of the Review); and (4) the book’s take on the role of gender and body banking is underdeveloped.Publication Make it Work!: Breyer on Patents in the Life Sciences(Harvard University, Harvard Law School, 2015-06-18) Cohen, GlennThis short essay is part of a Harvard Law Review Symposium honoring Justice Breyer on his 20th Year on The Supreme Court. It examines Breyer's opinions and impact on the law of patents in the life sciences, and shows how these writings reflect deeper elements of his judicial philosophy and method.Publication Disruptive reproductive technologies(American Association for the Advancement of Science (AAAS), 2017-01-11) Cohen, Glenn; Daley, George; Adashi, Eli Y.In vitro gametogenesis raises new possibilities for reproductive and regenerative medicine as well as vexing policy challenges.Publication Inbound medical tourism to Barbados: a qualitative examination of local lawyers’ prospective legal and regulatory concerns(BioMed Central, 2015) Crooks, Valorie A.; Cohen, Glenn; Adams, Krystyna; Whitmore, Rebecca; Morgan, JeffreyBackground: Enabled by globalizing processes such as trade liberalization, medical tourism is a practice that involves patients’ intentional travel to privately obtain medical care in another country. Empirical legal research on this issue is limited and seldom based on the perspectives of destination countries receiving medical tourists. We consulted with diverse lawyers from across Barbados to explore their views on the prospective legal and regulatory implications of the developing medical tourism industry in the country. Methods: We held a focus group in February 2014 in Barbados with lawyers from across the country. Nine lawyers with diverse legal backgrounds participated. Focus group moderators summarized the study objective and engaged participants in identifying the local implications of medical tourism and the anticipated legal and regulatory concerns. The focus group was transcribed verbatim and analyzed thematically. Results: Five dominant legal and regulatory themes were identified through analysis: (1) liability; (2) immigration law; (3) physician licensing; (4) corporate ownership; and (5) reputational protection. Conclusions: Two predominant legal and ethical concerns associated with medical tourism in Barbados were raised by participants and are reflected in the literature: the ability of medical tourists to recover medical malpractice for adverse events; and the effects of medical tourism on access to health care in the destination country. However, the participants also identified several topics that have received much less attention in the legal and ethical literature. Overall this analysis reveals that lawyers, at least in Barbados, have an important role to play in the medical tourism sector beyond litigation – particularly in transactional and gatekeeper capacities. It remains to be seen whether these findings are specific to the ecology of Barbados or can be extrapolated to the legal climate of other medical tourism destination countries.Publication Transplant Tourism: The Ethics and Regulation of International Markets for Organs(2013) Cohen, Glenn“Medical Tourism” is the travel of residents of one country to another country for treatment. In this article I focus on travel abroad to purchase organs for transplant, what I will call “Transplant Tourism.” With the exception of Iran, organ sale is illegal across the globe, but many destination countries have thriving black markets, either due to their willful failure to police the practice or more good faith lack of resources to detect it. I focus on the sale of kidneys, the most common subject of transplant tourism, though much of what I say could be applied to other organs as well. Part I briefly reviews some data on sellers, recipients, and brokers. Part II discusses the bioethical issues posed by the trade, and Part III focuses on potential regulation to deal with these issues.