Rationing, Irrelevant Utilities, and Inter vs. Intrapersonal distribution

This blog post was prompted by discussions with Frances Kamm, Jonathan Wolff,  and others after a great presentation Jonathan gave on the Valuation of Life and Health in Government Policies.

To return to an issue I have discussed briefly in other work, the question is how we should count very small gains in health for large numbers of people, a sub-set of the aggregation problem.  As I put the problem in a footnote in my Article Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012):

Utilitarians typically aggregate small harms to many people and count the sum. See, e.g., John Rawls, A Theory of Justice 23-24 (1971) (discussing the societal balance of present and future gains against present and future losses). The deontologist Frances Kamm has instead suggested that not all harms and benefits are equal, under what she calls the “Principle of Irrelevant Utility”: Suppose two almost identical individuals A and B are mortally ill and we have only enough serum to save one, but because of tiny differences in how much serum they need if we save A there will be enough serum left over to also cure person C’s sore throat, but if we save B there will not be. Kamm argues that it would be unjust in this circumstance to allocate the serum to A rather than B on this basis as opposed to holding a straight lottery between the two. If the sore throat is not enough to justify giving A preference over B when everything is equal, says Kamm, it is an “irrelevant utility” such that even if we could save not only C’s sore throat but a million such sore throats, for example, it would not matter; the utility bonus is irrelevant and therefore even aggregated in large quantities cannot count. Quite different, she claims, would be a case where in fact the serum enables us to save C’s leg, which would be a relevant utility. See F.M. Kamm, Morality, Mortality: Death and Whom to Save from It 144-63 (1993); Frances M. Kamm, To Whom?, 24 Hasting Ctr. Rep. 29, 31-32 (1994).

On the other hand, this principle may have counter-intuitive implications. To use an example suggested by John Broome, the National Health Service (the U.K.’s universal health care system) gives out millions of analgesics for headaches; at some level, due to health care rationing and fixed budgets, that means that someone’s life will not be saved.  John Broome, All Goods are Relevant, in WHO, Summary Measures of Population Health: Concepts, Ethics, Measurement and Applications 727, 727-28 (Christopher J.L. Murray et al. eds., 2002).

What came up over dinner, and I thought was particularly interesting, was the following question:

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Mitt Romney’s Son’s Abortion Contract

Over at Concurring Opinions, Dave Hoffman (via TMZ), writes:

Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies: We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011.  Paragraph 13 of the agreement reads as follows: “If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents.  In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”

It is a common error to think that contract terms are specifically enforceable as written.  I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause.  In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts.  Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed.  Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.” That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay.  Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.

Abortion clauses are not that uncommon in surrogacy agreements. I have actually address the constitutional and normative issues briefly in two 2008 papers. Here are my thoughts on the matter:

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Written on The Body: Reflections on Reactions to Funding Sex Re-Assignment for Prisoners

By Glenn Cohen

Last week, as I mentioned before, Judge Wolf (D. Mass) ruled that Michelle Kosilek, who was born as a man but has received hormone treatments and lives as a woman in an all-male prison, was entitled to the sex re-assignment surgery that the Department of Corrections’ doctor ordered as the treatment necessary for Kosilek’s Gender Identity Disorder.  The court found this result compelled by the 8th Amendment of the U.S. Constitution after accepting a finding that Kosilek was at risk of serious self-injury. Kosilek is serving a life sentence for murdering his/her wife.

The ruling has been very controversial. The question is why? On one level this might be thought of as a general reflection of antipathy towards murderers, or towards the transgendered.  But I think if we cut deeper there are three more interesting things that might be going on. I say “might” very explicitly, treat these as hypotheses, and certainly don’t mean them to be exhaustive.

Here they are:

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Should Mitt Romney (or Others Who are Pro-Life) Support Rape and Incest Exceptions to Abortion Bans?

by Glenn Cohen 

As America’s attention focused on the Republican Convention and the Obama campaign tries to portray a “Republican War on Women” at the Democratic one, last week Mitt Romney tried to clarify his position on abortion, namely: while he is generally against abortion, he would make an exception for cases where the mother has been raped or is the victim of incest. While politically savvy, based on other beliefs Mitt Romney has, this position is hard to defend if not incoherent.  Here is why: 

Mitt Romney, like most people who would outlaw abortion, must subscribe to two core beliefs: (1) Fetuses are persons and get the full panoply of the rights of persons from early on in their development (for Romney, like many, at “conception”), or at least possess a right not to be killed. (2) The mother’s interest in protecting her bodily integrity, making important reproductive or life choices, etc, does not outweigh the fetus’ right not to be killed. This is why Romney and other pro-lifers would prefer that abortion be banned even in the first trimester.

This logic is not incompatible with exception for the health or life of the mother. Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.

The rape and incest exceptions, though, are on a different footing entirely.

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