Reflections on a Recent Study Showing Sperm and Egg Donor as Übermensch/Uberfrau

Last week, I sat on a panel at the Mid-Atlantic Law and Society Association, with my wonderful colleagues Kim Mutcherson, Gaia Bernstein, Rene Almeling, and Cynthia Daniels on sperm donor anonymity. [NB: as in most of my work I will use the term “donor” because it is used in common parlance while acknowledging that “seller” is more accurate].

Among other topics discussed, Cynthia shared with us a new paper she has just published in Signs, co-authored with Erin Heidt-Forsythe, the contents of which I found fascinating and I think some BOH readers may as well. They examined the characteristics of 1,156 sperm donors from the top twelve sperm banks in the U.S., and found them to be very much (in my view) that of the ubermensch and uberfrau (in the Nazi conception of the term, not necessarily the original Neitzchean).

Among other findings they note that 44% of sperm donors are above 6 feet tall compared to 10% of American men; 61.9% have healthy weight in Body Mass Index (BMI) terms, as compared to 32% of the U.S. population; 62% had a college or higher degree compared to 26% in the U.S. population and only 2% of sperm donors had high school as their highest level of educational attainment compared to 32% of American men.

They also found that African-American and Latino donors, both underrepresented groups in sperm donor pools compared to the U.S. population, were much more likely to be listed as being on the light or medium skin tones for those groups rather than the dark side, again in variance with the distribution in the general population

They then compared these findings to a similar review of 359 egg donors recruited from eight fertility clinics.

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Upcoming Event – Advances in HIV Prevention: Legal, Clinical, and Public Health Issues

Monday, November 5, 2012
12-1:30 pm
Austin Hall, Room 111
Harvard Law School

On July 3, 2012, FDA approved OraQuick, the first at-home HIV test available for sale directly to consumers, allowing individuals to self-test and receive confidential results in about 20 minutes. Then on July 16, FDA approved once-daily Truvada, an already-approved HIV therapy, as the first agent approved for pre-exposure prophylaxis in uninfected, at-risk adults. These developments represent dramatic changes in the fight against HIV, and raise a host of legal, clinical, and public health issues. Please join us for a panel discussion of these issues with some of the preeminent leaders in the field, moderated by Robert Greenwald, Director of the Center for Health Law and Policy Innovation at Harvard Law School:

  • Douglas A. Michels, President and CEO, OraSure Technologies, Inc.
  • David Piontkowsky, Senior Director for Medical Affairs, HIV and HIV Global Medical Director, Gilead Sciences, Inc.
  • Kenneth H. Mayer, Medical Research Director, Co-Chair of The Fenway Institute
  • Kevin Cranston, Director, Bureau of Infectious Disease, Massachusetts Department of Public Health
  • Mark Barnes, Senior Associate Provost, University Chief Research Compliance Officer, Harvard University

This event is free and open to the public. Lunch and refreshments will be served. Co-sponsored by the Petrie-Flom Center, the Center for Health Law and Policy Innovation, and the Fenway Institute.

Is a Move Towards Freezing Oocytes a Move Towards Less Legal Liability for IVF Clinics? — Reflections from ASRM Annual Meeting Round 1

It was an exciting time to attend the annual meeting of the American Society for Reproductive Medicine in San Diego this week.  Just before the meeting, ASRM reclassified cryopreservation of oocytes for future use, removing the procedure’s “experimental” label. The possibility of increased uptake of this procedure raises many ethical issues (some of which I hope to discuss in a later post), but it also presents the potential to sidestep a number of legal liabilities and ethical issues associated with frozen embryos which are not implicated by frozen gametes. This begs the question: Is a move towards egg freezing in lieu of freezing embyos a safeguard against some types of liability for IVF clinics?  I think this may be the case.

Perhaps most importantly, frozen oocytes will not implicate personhood laws.  Advocates of personhood laws, such as vice presidential candidate Paul Ryan, have come under fire by pro-choice and feminist groups for their attempts to ascribe legal rights to embryos and fetuses.  However,  IVF clinics and clinicians should also be concerned.  It is an unanswered legal question if an IVF clinician or embryologist could be found guilty of manslaughter if there was an accidental thaw of a cryotank full of embryos.  There have been no such criminal proceedings brought against an IVF clinic — yet.  Freezing eggs would guard IVF clinics in states with personhood laws from this kind of criminal liability. Another question implicated by personhood laws is whether there is a doctor-patient relationship between a newly-created or frozen embryo. If one exists, then negligence claims regarding proper storage of embryos could become medical malpractice claims; if frozen gametes are mishandled it is unlikely such a relationship could exist.  Litigation against the Oschner Fertility Clinic (which has now closed) brings some of these issues to life.

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The Absurd Consequences of Statutory Rape Law

By Michele Goodwin

Across the country, children under the age of fourteen are being convicted of rape for engaging in consensual sex with children of similar age.  In Utah, a child who commits “more than five ‘separate acts’ of sexual touching,” can be prosecuted for “aggravated sexual abuse of a child.” In South Dakota, a minor can be adjudicated a delinquent and guilty of first degree rape for one act of sexual penetration, regardless of consent.  Wisconsin’s law reads similarly.  To be clear, I am not referring to the Romeo and Juliet cases (the male is 18 and the girl is 16).  No, I’m speaking of children as young as eleven.  These adolescent violators now end up on sex offender registries—some for life.  In some states, including Utah, adolescent fondling is considered sexual abuse of a child as are: attempts to touch the buttocks, breasts, or “intent to arouse or gratify the sexual desire…”  Even consenting children will always be deemed “victims” in states that take this approach.

In 2011, J.L. was adjudicated a delinquent, charged with first-degree rape, and convicted under the South Dakota statutory rape statute.  J.L. had no prior convictions, nor other violations of the law that might suggest a propensity for crime, violence, or danger to the community.  Indeed, the first degree rape conviction did not stem from a violent, coercive sexual encounter with an adolescent, rape of an adult woman, or from forced sex with a child or infant.  Rather, according to the South Dakota Supreme Court, J.L., who was fourteen, “engaged in consensual sexual intercourse with his girlfriend [], who was twelve,” and only fifteen months his junior.  Ironically, in the state of South Dakota, J.L.’s conviction will result in legal and extra-legal penalties far more severe than that of an adult rapist who commits a sexually violent act against a college peer, a random woman, or during the commission of another crime.

For all the recent controversy about rape, its legal and political definitions, politicians have ignored the uneven, punitive punishments resulting from statutory rape laws’ harsh application against minors who fornicate with minors.  Indeed, no coherent framework has been offered by politicians that respond pragmatically to the empirical realities of adolescent sexuality.  Neither federal nor state legislatures offer a coherent, well articulated approach to militate against the harshest criminal punishments demanded by statutory rape provisions and sex offender registries.

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Petrie-Flom Interns’ Weekly Round-up: October 20 – October 26

  • The NY Times reported earlier this week on a split decision regarding a surrogacy case in New Jersey Supreme Court. The court’s decision held little clarity in interpreting who has parenthood claims to children conceived through surrogacy–the donors of the child’s genetic material or the adults who raise the child. Read the details and decision of the case here.
  • An opinion piece highlighted the growing trend and importance of nurses acting in the capacity of family doctors in order to promote access to health care. Clinics of nurse-practitioners have been important in allowing patients to save on health care costs, receive faster treatment and diagnosis, and connect more deeply to their healthcare providers.
  • In a time when the efficacy of mammograms still has not been firmly established, a new controversy has emerged as some state laws have mandated that clinics tell patients about dense breast tissue. The conflict emerges because there has been no conclusive evidence that dense breast tissue actually holds much significance. Critics are worried these laws will lead to a flurry of unnecessary tests and biopsies; however, there are many in the medical community that also support these laws, so opinion remains heavily divided.
  • Another article by the NY Times reported on a settlement of a nationwide class-action lawsuit that will allow patients with chronic conditions or disabilities to qualify for Medicare coverage of outpatient therapy, home care, and nursing homes. This has the potential to affect tens of thousands who are suffering from chronic disease and their families that have had to foot the often exorbitant financial bill.
  • On Thursday, a federal appeal court refused the appeal of Planned Parenthood in its attempt to obligate the the Women’s Health Program of Texas to fund its organization.
  • NPR reported on a very contentious issue in Massachusetts elections this year: the “Death With Dignity” ballot question, which, if voter-approved, would legalize physician-assisted suicide. In the US, only two states have already legalized this initiative. Critics on all sides fear the abuse of this provision and worry that it will send a damaging message on the value of life. On the other side, proponents argue for patients’ rights. Either way, the vote in Massachusetts, considered a pioneer in health care among the states, could set the stage for further national debates and decisions.

Fixing Genes Using Cloning Techniques

One more from Art Caplan:

Fixing genes using cloning technique is worth the ethical risk

A team of scientists at the Oregon National Primate Research Center and the Oregon Health & Science University are reporting a remarkable advance in the treatment of inherited genetic disease in the journal Nature.

They show it is possible to repair a tiny part of a human egg cell that, when broken, causes a host of awful inherited genetic diseases.  Those diseases cause disability and the death for many children and adults.  What is equally remarkable is that the treatment they report is illegal in Britain, Germany, Costa Rica, Norway and Sweden and would be illegal to provide using federal dollars in the United States.

What did the Oregon scientists do?  And why is it so ethically controversial?

Keep reading…

Art Caplan on Liability for Non-Vaccinators

Art Caplan has a new article out in the Journal of Law, Medicine, and EthicsFree to choose but liable for the consequences: should non-vaccinators be penalized for the harm they do?” (subscription required)

Here’s the abstract: Can parents who choose not to vaccinate their children be held legally liable for any harm that results? The state of laboratory and epidemiological understanding of a disease such as measles makes it likely that a persuasive causal link can be established between a decision to not vaccinate, a failure to take appropriate precautions to isolate a non-vaccinated child who may have been exposed to measles from highly vulnerable persons, and a death. This paper argues that, even if a parent chooses to not vaccinate a child under a state law permitting exemptions, that decision does not create complete protection against liability for the adverse consequences of that choice.

The Uncertain Future of Probiotics

By Patrick O’Leary

In the October 22 edition of The New Yorker, Michael Specter wrote a fascinating article about the growing and exciting science of the human microbiome, the ecosystem of ten thousand or so bacterial species that call each of our bodies home. The hype around this particular field of scientific and medical inquiry is intense: Specter quotes David Relman of Stanford Medical school as saying that right now we are in the “beautiful, euphoric, heady early period” of the field, and notes that each week seems to bring additional symposia, publications, and grants for new research. All of this is for good reason. Promising studies have indicated that microbial therapy (the intentional introduction of certain bacteria into the body) can be an effective treatment for some diseases, while other researchers have suggested that a variety of modern diseases (like asthma, inflammatory-bowel disease, and some allergies) may be tied to changes in the human bacterial ecosystem. In some ways, this isn’t news: as Dr. Douglas Archer noted in an FDA advisory committee meeting on probiotics over a decade ago, using food with live cultures to treat disease is a longstanding practice dating at least as far back as 76 BC, when the Roman historian Plinio advocated using fermented milk to treat GI infections.  Read More

Legal Implications of the Meningitis Outbreak

If you’ve been following the fungal meningitis outbreak and wondering about the legal implications, take a listen to this audio interview with Glenn Cohen and personal injury lawyer Michael F. Barrett, hosted by Legal Talk Network’s Lawyer2Lawyer.  They discuss the litigation likely to stem from this outbreak (and some already pending), as well as the role of FDA and CDC in regulation.