Petrie-Flom Interns’ Weekly Round-up: December 8 – December 21

The Petrie-Flom Center Staff Leave a comment

By Hyeongsu Park and Kathy Wang

  • Pennsylvania governor Tom Corbett joined other Republicans in vowing not to set up a state-wide health care exchange, citing a lack of resources and preparation in order to do so. In making this decision, the Corbett administration will be allowing the Presidential administration to take charge of its exchange. This decision comes amidst large debate that basically broke down along partisan lines, with Democrats strongly pushing for a state-specific exchange.
  • Even as some states have been resisting setting up these health care exchanges, other states are moving ahead and have already garnered conditional approval for their health insurance marketplaces. These nine states, all of which are headed by Democratic governors, have expressed strong interest in carrying out the health care overhaul as swiftly as possible. Other states have been attempting to bargain for a partial expansion of Medicaid, although they have largely been met by rejection from the administration.
  • The European Institute of Bioethics released a study last week on the state of Belgium’s legalized euthanasia law, which was worded with the intent to protect the vulnerable. However, the report found several failings in the law and corresponding processes, finding on-going abuses in several areas.
  • In Australia, the most recent bioethics debate has been around overseas commercial surrogacy, as authorities attempt to reconcile legalized commercial surrogacy and the potential exploitation of women and the protection of surrogates, commissioning parents, and children.
  • Last week, AP reported that there are “fewer health care options for illegal immigrants,” highlighting a controversial point in the newly passed health care bill. Since most states do not question immigration status, it has been difficult to establish the cost of treatment of illegal immigrants.
  • In the ever-controversial debate about abortion laws, Wisconsin and Michigan have recently joined the fray. In Wisconsin, its chapter of Planned Parenthood intends to sue over abortion medication. Meanwhile, in Michigan, two bills limiting abortion moved closer to becoming law.
  • Meanwhile, overseas, the Irish government made a statement on Tuesday suggesting it would allow abortion under limited circumstances. This action is seen largely as a response to comply with demands of the European Court of Human Rights. In addition, in the Philippines, a bill intended to expand birth control to give access to the poor and those who live in rural areas was finally passed through legislation, pushing through much religious and sociopolitical challenge. As a country that is 80% Catholic, this measure had been debated for over a decade with strong opposition from the Church.
  • Last Friday, the Supreme Court decided that it would rule on a case regarding generic medicines, which has the potential to answer longstanding questions as to whether pharmaceutical companies buying out generics is a violation of antitrust law. These “pay-for-delay” deals are largely intended to allow pharmaceutical companies to continue to charge higher prices for their brand-name drugs.
  • A NY Times article highlights alternative methods of addressing the problem of a shortage of doctors, primary care physicians in particular, by relying on other medical professionals and expanding their capacities. Initiatives to allow non-doctors to take a larger role in medical care seem to be promising ways of filling this supply gap.
  • In the aftermath of the legalization of marijuana in Colorado and Washington, federal inaction has allowed marijuana proponents in California to renew their challenge of federal government closures of one of the state’s largest marijuana dispensaries.

Prohibitions on Egg and Sperm Donor Anonymity and the Impact on Surrogacy

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By: Gaia Bernstein

[cross-posted from Concurring Opinions]

Egg and sperm donations are an integral part of the infertility industry. The donors are usually young men and women who donate relying on the promise of anonymity. This is the norm in the United States. But, internationally things are changing. A growing number of countries have prohibited egg and sperm donor anonymity. This usually means that when the child who was conceived by egg or sperm donation reaches the age of eighteen he can receive the identifying information of the donor and meet his genetic parent.

An expanding movement of commentators is advocating a shift in the United States to an open identity model, which will prohibit anonymity. In fact, last year, Washington state adopted the first modified open identity statute in the United States. Faced by calls for the removal of anonymity, an obvious cause for concern is how would prohibitions on anonymity affect people’s willingness to donate egg and sperm. Supporters of prohibitions on anonymity argue that they only cause short-term shortages in egg and sperm supplies. However, in a study I published in 2010, I showed that unfortunately that does not seem to be the case. My study examined three jurisdictions, which prohibited donor gamete anonymity: Sweden, Victoria (an Australian state) and the United Kingdom. It showed that all these jurisdictions share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

In a new article, titled “Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy,” I examine the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy. Surrogacy has not been part of the international debate on donor gamete anonymity. But the situation in the United States is different. Unlike most foreign jurisdictions that adopted prohibitions on anonymity, the practice of surrogacy in the United States is particularly reliant on donor eggs because of the unique legal regime governing surrogacy here.  Generally, there are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement the surrogate’s eggs are used and she is the genetic mother of the child, while in gestational surrogacy the intended mother’s eggs or a donor’s eggs are used and the surrogate is not the genetic mother of the conceived child. Most U.S. states that expressly allow surrogacy provide legal certainty only to gestational surrogacy, which relies heavily on donor eggs, while leaving traditional surrogacy in a legal limbo. Without legal certainty, the intended parents may not be the legal parents of the conceived child, and instead the surrogate and even her husband may become the legal parents. Infertility practitioners endorse the legal preference for gestational surrogacy also for psychological reasons, believing that a surrogate who is not genetically related to the baby is less likely to change her mind and refuse to hand over the baby.

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The State of Public Health Law: Post I, “Who Am I? Why am I Here?”

Temple University Center for Public Health Law Research Leave a comment

By Scott Burris

Early in January, Lindsay Wiley and the Network for Public Health Law will convene a group of health law professors and (and a few colleagues from public health law practice) in Washington.  They will be spending a couple of days advancing a conversation about how academic health lawyers can make a bigger contribution to the cause of improving the level and distribution of health in the United States.  The conversation will pick up where a smaller group, organized by Wendy Parmet and Leo Beletsky, left off last Summer. You can read more about that meeting here.

The impetus for these meetings has been a sense that there is a well-organized and well-funded legal effort to blunt key initiatives in public health – and that it seems to be winning.  And that “our side” is not putting up much of a fight. Whether it is the creeping First Amendment or the shrinking Commerce Clause – or just the battle for public hearts and minds – many of us law professors shared the feeling that we needed to rethink our game, not just in the short term, but for the long haul.

The discussion in January will be addressing three questions essential to that rethink: (1) where are we now? (2) where would we like to be in 20 or 30 years? and (3) what will we have to do to get there?  In advance of the meeting, we are thinking about these questions, and I have taken on the task of offering some thoughts on question 1, in the form of a series of blog posts over the next three weeks.  These will be personal essays, describing my own perhaps confused thoughts. I consign them to ablog as much for future deniablilty as present dissemination. I’ll be happy to have comments.

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BU Law Conference on New Legal Challenges to Global Tobacco Control, Jan. 25, 2013

koutterson 1 Comment

Boston is a great city for health policy. On Jan. 25, BU Law hosts a conference on New Legal Challenges to Global Tobacco Control. Just a month later, Harvard hosts its own conference on the Global Governance of Tobacco (details here).

The BU Law conference  (announcement here; detailed schedule here) will focus on challenges rooted in constitutional law (First Amendment litigation in the US attacking FDA-required graphic images on tobacco packs); trade mark law (plain packaging in Australia); and global trade and investment treaties such as the Hong Kong-Australia Bilateral Investment Treaty and the WTO Agreements.  Speakers include some of the world’s leading public health experts on this topic:

  • Matthew Allen, Allen + Clarke Policy and Regulatory Specialists
  • Micah Berman, New England School of Law
  • Scott Burris, Temple University Beasley School of Law
  • Julien Chaisse, The Chinese University of Hong Kong
  • Richard Daynard, Northeastern University School of Law
  • Samantha Graff, NPLAN
  • Jane Kelsey, University of Auckland Faculty of Law
  • Lara Khoury, McGill University Faculty of Law
  • Mark Levin, University of Hawai’i at Manoa William S. Richardson School of Law
  • Jonathan Liberman, Cancer Council Victoria
  • Benn McGrady, Georgetown University Law Center
  • Ted Mermin, Public Good Law Center
  • Kevin Outterson, BU School of Law
  • Robert Stumberg, Georgetown University Law Center
  • Allyn Taylor, Georgetown University
  • Tania Voon, University of Melbourne Law School
  • George Annas, BU School of Law and BU School of Public Health
  • Leonard Glantz, BU School of Law and BU School of Public Health
  • Wendy Mariner, BU School of Law and BU School of Public Health
  • Alexandra Roberts, BU School of Law
  • Keynote Speaker: Dr. Michael Siegel, BU School of Public Health

The conference is open to everyone; see the schedule for details. The conference papers will be published in the American Journal of Law & Medicine.

The Newtown Tragedy: Today’s Need for Common-Sense Rhetoric and Regulation

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I grew up in a family of gun hobbyists.  One of my older brother’s most treasured Christmas presents from childhood is a rifle that was used in WWII; my dad had a collection of several dozen handguns, shotguns, and rifles, including a semi-automatic AR-15 “assault rifle” and a pearl-plated revolver and holster that he bought with a “Sheriff” badge just for fun; my younger brother is an ex-Marine. Throughout childhood, I spent every weekend of hunting season (and many summer weekends besides) on a West Texas ranch, shooting dove, quail, ducks, and exploding targets attached to grapefruits and ice blocks. And when I went to babysit my niece and nephew for a week in Austin, my brother’s first task was to show me where all of the house’s handguns were kept and how to open the safes he kept them in.

I don’t own a gun myself, and I don’t have any plans to get one. But I understand the utility of guns for both recreation and defense. Of course, as a scholar of health law and constitutional law, I also understand how complex the questions are that guns present for public health and individual liberty. But, as usual, my sense is that there is an obviously correct approach to those complex questions: an approach that seeks balance and optimization. A ban isn’t the right answer, from a policy or constitutional perspective, but in light of the very real dangers that guns present, neither is a strong Second Amendment bar to regulation. Of course, this view represents the current state of the law in both legislation and Supreme Court precedent; the balanced view is inconsistent only with the debate’s heated rhetoric. Here are a few thoughts:

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End of life, language, and the press

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By Cristiane Avancini Alves

In my previous post, I mentioned that Brazil does not have a specific law about advance directives. Nevertheless, a recent Resolution of the Federal Board of Medicine addresses this subject. It indicates that so-called “advance directives of will” are the set of desires, previously and expressly manifested by the patient, about the treatment he wants (or does not want) to receive when he is unable to express his will in a free and autonomous manner. Two points must be highlighted: the physician will not follow any patient’s directive that could violate the Medical Ethical Code, and the patient’s wish will overrule the intervention of his family regarding his decision.

The Resolution clearly expresses that “advance directives of will” mean what the phrase itself indicates: a direction, not a closed document that cannot be modified or that must be blindly followed. Time is significant in this context. For example, rapid biomedical development and the new possibility of cure can change the patient’s treatment course, regardless of a prior directive. Besides that, our personal believes about life and death can also change. Unfortunately, these elements have been misrepresented by the media. One of the most important Brazilian magazines dedicated a special report to the subject, but the headline was: “I decide my end”. No. That’s not what the Resolution affirms. The report continues by saying that the expression “advance directives of will” is a “pompous” name for “vital testament”. No. The title is not pompous, but rather accurate – reflecting simply that the document is a previous direction made by the patient. Moreover, advance directives of will cannot be related to testament, since the directive’s effects will occur during life, not after it – as it is for the legal meaning for testament.

Overall, the issues that came up here are indicative of broader issues related to how the media and public understand their rights, and the importance of word choice and clarity to that understanding.

Gun Violence: Lessons Learned from Car Crashes

Temple University Center for Public Health Law Research 1 Comment

By Scott Burris, JD

“I have an absolute right to drive any vehicle I want, on any road, at any time, at any speed, and under any conditions.”

That’s an argument few people would take seriously. And few people would take seriously the argument that we should ban or substantially limit automobile use, despite the fact that America suffers more than 30,000 motor vehicle deaths every year.

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Dissertation Grants for Public Health Law Research

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The Public Health Law Research program’s Strategic and Targeted Research Program funds research to fill critical gaps in the public health law evidence base. As part of this effort, PHLR is offering dissertation grants to train doctoral students in public health law research methods, including the development of legal datasets. PHLR invites current PhD students in accredited doctoral degree programs to apply.

Dissertation grants will be awarded for up to $20,000 each for 12 months maximum, and they include qualitative or quantitative studies of the health effects of specific laws or regulations and/or related underlying mechanisms of effect, and mapping studies that create a multi-jurisdictional dataset of laws suitable for quantitative research.

Up to $100,000 will be available under this program. Learn more about the call for proposals and how to apply: https://phlr.org/strp

We Need to Treat Violence as Public Health Issue

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By Art Caplan (cross-posted from his Vitals column on NBCNews)

The mass murder of 20 children and six adults Friday in Newtown, Conn., has provoked yet another round of recrimination, finger pointing and breast-beating. Was the shooter mentally deranged? If there was more gun control, would this have happened? Did violent video games play any role? What we fervently want as we continue to reel from a story whose misery seems to know no bounds is to find a clear cause – a reason why this happened – so that we can fix it.

We hope to see something in all the stories, analyses, commentaries, Facebook postings and Twitter speculation that gives us the reason behind what happened and thus a guarantee that if we understand and act on it then no 6 year old or her parent need to worry ever again what might happen at their school. We hope that no college, hospital or mall will ever again have a reason to practice drills for “shooters” and no play or movie-goer grow anxious over who has snuck into the theater with evil intent.

But, there is no simple answer. We have ourselves to blame for where we find ourselves in terms of mass shootings. Our culture is too far down the road of tolerating and even extolling violence. We do so in our popular entertainment, we permit the mass marketing of violence to young kids, and we thrill to it in too many of our sports. A lot of people make a lot of money selling violence. I doubt that will change.

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Conference: The Governance of Tobacco in the 21st Century, February 26-27

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The Harvard Global Health Institute will be co-hosting a conference on The Governance of Tobacco in the 21st Century: Strengthening National and International Policy for Global Health and Development at Harvard on February 26-27, 2013.  The conference program is available here, and additional information can be found here. Space is limited.  Please register by January 10.

For further information, contact Monique Bertic mbertic@hsph.harvard.edu