Person:

Cohen, Glenn

Response to Darren Rosenblum’s UnsexMothering: Toward a Culture of New Parenting

On 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.

As Justice Douglas wrote in Skinner v. Oklahoma, procreation is one of the “basic civil rights of man.” Along with marriage it is “fundamental to the very existence and survival of the race” and the state’s interference with it “threatens to have subtle, far-reaching and devastating effects.” And yet the U.S. and other countries regulate a wide range of reproductive activities such as forbidding anonymous sperm donation, funding abstinence education, criminalizing brother-sister incest, preventing the sale of sperm or eggs or surrogacy services, and forbidding single individuals from accessing reproductive technologies. In justifying these and other regulations of reproduction legislatures, courts, and commentators have relied (at least in part) on an idiom that I call Best Interests of the Resulting Child (BIRC) as a justification, which focuses on the best interests of the child who will (absent state intervention) result from these forms of reproduction.

My goal in this Article and its companion paper Regulating Reproduction: the Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), http://ssrn.com/abstract=1955292 is to reveal and delve into the secret ambition of best interests (sometimes called child welfare or child-protective) discourse in the regulation of reproduction. By discussing best interests in this context, the party proposing reproductive regulation is able to avoid charged and heated political disagreements by offering a palatable idiom on which multiple political theories can converge. After all, who is in favor of allowing harm to society’s most vulnerable?

While palatable, however, I show that this justification is vacuous and pernicious. I draw on insights from bioethics, philosophy of identity, and doctrinal rejections of wrongful life tort liability to show why BIRC justifications are vacuous: Unless the state’s failure to intervene foists on the child a life not worth living any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist.

BIRC reasoning is pernicious because it masks the true justifications that undergird these regulations of reproduction. It offers a way of talking about the regulation of reproduction that avoids confrontation with justifications that are disturbing, controversial, and/or illiberal; approaches that may justify eugenics, mandatory enhancement, or other problematic ideas. My goal in this Article is to force that confrontation and to evaluate the plausibility of these substitute justifications once exposed.

In this part of the project, I focus on four justifications that might be thought of as substitutes for BIRC. First, Reproductive Externalities, wherein the regulation of reproduction is justified not as the prevention of harm to the resulting child (the BIRC justification) but based on the costs that reproduction imposes on third parties. Second, Wronging while Overall Benefiting, where the fact that harm is done to provide an overall benefit is insufficient to save the act from being wrongful. Third, Legal Moralist approaches, which seek to use the criminal law or other regulatory tools to deter acts that neither harm nor offend but undermine public morality in order to maintain traditional ways of life. Finally, Virtue Ethics approaches, which focus on encouraging parental virtue as the basis for intervention. I consider the sufficiency of each in turn as a substitute for BIRC and the pattern of reproductive regulation they would permit.

I show that each substitute approach runs into serious problems. While I find the Reproductive Externalities approach the most promising, I show that when properly understood even this approach can justify only a much narrower swath of regulation of reproduction than currently exists, such that much of the existing law in this area cannot be justified.

Those who are interested in the project, might also find interesting two related articles I have written: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, 100 Georgetown Law Review, Vol. 100, 2012, available at http://ssrn.com/abstract=1961605 and Intentional Diminishment, the Non-Identity Problem, and Legal Liability, Hastings Law Journal, Vol. 60, 2008, available at http://ssrn.com/abstract=1330504

This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children and whether legal liability should attach to such acts. In particular, this Article considers the way these issues are intertwined with what philosophers have called the Non-Identity Problem, the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.

In her Article in this symposium (http://ssrn.com/abstract=1295426), Kirstin Smolensky suggests that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it were done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability.

In this Article I critically examine this claim in two ways. First, I suggest some problems with her arguments for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children.

Second, I examine whether legal liability should be barred even for cases where the Non-Identity Problem applies. I set out several approaches drawn from the bioethics literature that suggest that the parents have acted wrongfully by creating disabled children notwithstanding the Non-Identity Problem. I then offer some tentative views about whether any of these approaches is a valid basis for legal liability, discussing tort law, which is Smolensky's focus, and also extending the project beyond tort to discuss criminal law and other forms of legal regulation.

Does the Federal Constitution protect a right not to procreate, and what does that mean? Modern reproductive technology has made this question both more salient and more problematic. For example, a number of courts and commentators have assumed the existence of a federal constitutional right not to procreate and relied on it to resolve disputes over stored frozen preembryos that couples have fertilized in the course of in vitro fertilization (IVF).In this Article, I challenge that assumption. I argue that these authorities err by relying on a monolithic conception of the right not to procreate. I instead contend that the right is best conceived as a bundle of rights containing three possible sticks: the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent. Using this framework, I show that while the Supreme Court's jurisprudence unquestionably protects a right not to be a gestational parent as a fundamental right, it does not compel recognizing a right not to be a genetic parent, when genetic parenthood is unbundled from the obligations of legal and gestational parenthood. I also examine three other challenges to the Court's and commentators' constitutional claim. First, I suggest that even if there is a fundamental right not to be a genetic parent, infringement thereof might survive constitutional scrutiny under the appropriate standard of review. Second, I argue that there is no state action in preembryo disputes and others like them, such that the Constitution is not implicated at all. And finally, I argue that the asserted constitutional right not to be a genetic parent may be subject to advance waiver, as are many other constitutional rights.

In early 2010, the Nebraska state legislature passed a new abortion restricting law asserting a new, compelling state interest in preventing fetal pain. In this article, we review existing constitutional abortion doctrine and note difficulties presented by persistent legal attention to a socially derived viability construct. We then offer a substantive biological, ethical, and legal critique of the new fetal pain rationale.

Should the law recognize an individual's right not to be a genetic parent when genetic parenthood does not carry with it legal or gestational parenthood? If so, should we allow individuals to waive that right in advance, either by contract or a less formal means? How should the law's treatment of gestational and legal parenthood inform these questions? Developments in reproductive technology have brought these questions to the fore, most prominently in the preembryo disposition cases a number of courts have confronted—disputes over the use of stored frozen preembryos that couples have fertilized in the course of In Vitro Fertilization (IVF)— but other examples abound.

In this Article, I argue that, in analyzing these cases, it is essential to unbundle the possible rights not to be a genetic, gestational, and legal parent, and to recognize that the three rights do not stand and fall together. I show that we cannot move from the discourse surrounding the rights not to be a gestational and legal parent to a justification for a right not to be a genetic parent. Instead, I argue that the normative mooring of the right not to be a genetic parent is best understood as a way of protecting individuals from what I call "attributional parenthood," a harm that stems from the social assignment of the status of parent to the provider of genetic material that persists notwithstanding the fact that the legal system has declared him or her a nonparent.

Using this framework, I argue for the recognition of the right not to be a genetic parent. I reject, however, the claim, common among courts and commentators, that this right should not be capable of advance waiver. I instead conclude that we should permit advance waiver of the right through contract, with several interventions aimed at improving contractual consent. In preembryo disposition disputes where the parties have not contracted, I argue for a general default rule of non-use, perhaps with a sub-rule permitting use when non-use would mean the impossibility of one party ever having any genetic children.

Background: 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.

“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.

In 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.