9-10:30 a.m. Organ Markets
Lior Strahilevitz, Commentator
Benjamin Hippen, Transplant Nephrologist, Member of UNOS/OPTN Ethics Committee
Organ Sales and Moral Travails Lessons from the Living Kidney Vendor Program in Iran
Kidney transplantation in the United States is burdened by a terrible policy failure. The cost of this failure will be paid in the currency of years of human lives unnecessarily lost, as well as a massive increase in federal expenditures over the next decade and beyond. The number of patients with end-stage renal disease (ESRD) in the United States has grown, but the supply of kidneys—for the preferred treatment for ESRD, kidney transplantation—has not kept pace with the demand. Unfortunately, the issue is not simply one of supply and demand: in the United States the supply of kidneys for transplantation is kept artificially low by a prohibition on the sale of human organs. If a decade’s worth of reports in the transplant literature are to be believed, only one country in the world does not suffer from an organ shortage: Iran. Although Iran clearly does not serve as a model for solving most of the world’s problems, its method for solving its organ shortage is well worth examining. Organ donation is ubiquitous throughout the world, but Iran is the only country that legally permits kidney vending, the sale of one individual’s kidney to another suffering from kidney failure. A critical examination of what can be learned from the Iranian experience demonstrates that (a) in sharp contrast to reported outcomes underground, grey-market organ trafficking, kidneys purchased from living vendors confer outcomes to recipients which closely track outcomes for recipients of donated kidneys, (b) living and deceased kidney donation comfortably co-exist alongside a robust market in organs, and (c) the Iranian system correctly separates the responsibility (and the incentive) for recruting potential vendor candidates from the responsibility for approving a vendor's medical and surgical candidacy. The salient, crucial moral concern raised by the Iranian system stems from the ambiguity about the long-term biological, psychological and socioeconomic consequences of the exchange for organ vendors, a concern the paper outlines in detail. Properly understood, lessons gleaned from the Iranian system of organ vending inform what a regulated market in organs in free societies could be, as well as what it must not be.

Lainie Ross, University of Chicago Medical School
Markets Are Not an Ethical Solution to the Organ Shortage
I begin with a review of the "4 Principles" approach to medical ethics as described by Beauchamp and Childress [Principles of Biomedical Ethics, 5th ed. Oxford, 2001]. The 4 principles are: 1) Autonomy; 2) Beneficence; 3) Non-Maleficence; and 4) Justice. I show how proponents misuse these 4 principles and explain why they do NOT ethically permit an organ market.
Proponents make 5 errors. First, proponents argue not for a free market but a regulated market. I argue that this is because of the potential exploitation in a free market. But if true, then the argument is NOT about autonomy of vendors and donors, but about how to ensure an adequate supply of organs. The individual is lost in the process. Second, proponents fail to consider the moral agency of the transplant community. Third, proponents fail to consider the fact that there are 2 parties in organ sales: the recipients and the vendors. Both become patients to the transplant physician and yet it is not clear that we would treat them with equal concern. I show that vendors and donors would not be viewed equally by recipients, transplant teams, and the wider society. Fourth, proponents deny the data that exist from international experiences. These data should be viewed as pilot data, and they are quite discouraging.
The fifth and most important error is the proponents’ misunderstanding of justice. While there are many conceptions of justice, Veatch provides convincing arguments about why egalitarian justice is the appropriate conception of justice in organ transplantation [Transplantation Ethics. Georgetown University Press, 2000]. The most widely accepted egalitarian theory was developed by Rawls. Rawlsian justice would permit policies that increase organ transplants if the policies are not harmful to those who are already worst off. As such, Rawlsian justice would not permit a market in kidneys because those who are willing to sell are those who are "worst off". Alternative egalitarian conceptions of justice would also not permit a market in organs because those who would buy the organs have the resources and the responsibility for addressing the vendors’ desperate situation in other ways (e.g., universal health care; a better safety net) and their own (e.g., dialysis, deceased donor transplantation). Moreover, justice must be understood over time. That is, a theory of distributive justice must not only account for fairness in this generation but in future generations! An organ market may take away the incentives to focus on prevention! Therefore a market may improve the life-years of those individuals already on dialysis, but may cause greater harm if more people end up with end-stage renal disease.
In conclusion, I argue that in a liberal society that values human rights and the dignity of man, egalitarian justice is the most appropriate conception of justice for public policy, and properly understood, it would proscribe organ sales!

     10:40 a.m.-12:10 p.m.  Baby Markets
Lee Fennell, Commentator
Debora Spar, Professor, Harvard Business School
Free Markets, Free Choice? A Market Approach to Reproductive Rights
Can markets protect reproductive rights?
It sounds like a rhetorical question, or even a patently absurd one. Because markets, we are tempted to respond, have nothing to do with reproductive freedom. Markets are about money and prices; about bringing buyers and sellers together in a neutral and impersonal environment. Markets don’t care about reproductive rights, or indeed about any rights at all. How could they possibly be used to protect them?
Yet the apparent absurdity of this connection does not necessarily make it untrue. For although markets are clearly not designed to advance reproductive rights, they may still be able, under some circumstances, to provide this critical function. In fact, the very impersonality of markets and their sheer lack of normative content might actually make them uniquely capable of protecting reproductive freedoms.
This paper explores this counterintuitive proposition, examining whether – and how, and why – markets might be harnessed to the service of this particular right.

Jose Gabilondo, Associate Professor of Law, Florida International Law School
Heterosexuality Offspring Preference: Pricing and Policy Implications
When imagining future children, heterosexuals may manifest a pre-natal preference for heterosexuality in offspring ("taste for heterosexuality," "heterosexuality premium," "gay discount"). To discover the price of this preference, I designed an auction game with heterosexuality in notional offspring as a unit of account against which to measure other reproductive trade-offs about which future parents may have pre-natal commodity preferences. In a social economy that places a premium on heterosexuality and its reproduction, the preference might seem sensible when a would-be parent tries to garner income (especially its psychic, social, and symbolic forms) from holding children as commodities. Courts, legislatures, and other law-makers subsidize the pre-natal heterosexuality premium through state action which values heterosexuality over other orientations in actual and notional persons. In doing so, law "makes a market" for both the normative value of the preference and the social reproduction of this value.
This pre-natal preference raises some questions about the social economics of reproduction: Is the preference contingent? If so, how do social and legal institutions "make a market" for the preference and its serial reproduction? Is the pre-natal preference "self-fulfilling" by engendering the very social pricing against which it may be sought to be justified on behalf of future children? Given the rate at which the orientations of children-in-fact do not match up with the pre-natal preference, does it actually serve or undermine a parent’s income interest in children? Insofar as it works "gender cleansing" in notional and, then, factual children, is the preference eugenic and is it strong enough to trump or off-set the taste for "own children" noted by Gary Becker? Should professionals in reproduction markets facilitate or mitigate the preference when advising future parents?
My paper examines these pricing and policy implications of the pre-natal preference.

Mary Anne Case,University of Chicago Law School
For Love or Money: Sex Discrimination in Compensation for the Supply of Genetic Materials
My presentation for this conference is a continuation of two longstanding strands of my work. The first is my commitment to resisting, not just the subordination of women, but sex discrimination. The second is my exploration of what I’ve called the "Pets or Meat" problematic, which asks whether and when commingling commodification with affection can be more problematic than naked commodification.
I begin with the observation that it is no accident that the areas in which the "Pets or Meat" question comes up most often and potentially most problematically are pink collar areas, in which women are predominant providers. Just as women are more likely to be involved in emotional labor as providers, they are more likely to face resistance to full monetization of the labor they provide. Not only child care workers and domestics, but secretaries, nurses and teachers, are expected to accept some portion of their compensation in affection. Much of what women have market power over, such as their sexual and reproductive services, they have long been expected not to commodify at all. Even when monetary compensation is allowed, it is often kept low and female providers are expected to be interested in rewards other than money. Nowhere is this clearer than in the comparison of sperm and egg donors. Sperm donation is safe, easy, quick, and painless (indeed, the activity involved, masturbation to orgasm, is generally thought pleasurable). Egg donation is time-consuming, painful, and risky, involving invasive physical examinations, multiple injections with hormones, and surgery. Yet, it is egg donation for which monetary compensation is seen as more problematic. Many countries prohibit all compensation of egg donors. In the United States, where compensation is legal, the price has gradually risen from at most a few hundred dollars in the 1980s, when procedures were first developed, to an average of several thousand today, much less per minute of time than sperm donors are paid. That sperm donors do it for the money is generally seen as unproblematic. But, "if an egg donor applicant is in it for the money, she’ll either be rejected by the program or disappointed with the results: The stipend doesn’t cover the time and discomfort the donation process requires." That most egg donors list altruistic motives among their reasons for participating is not surprising, given that "reputable agencies" reject prospective donors who "can’t give . . . a good answer" to the question, "What are you hoping to gain from this experience outside of the check?" Like Lori Andrews, I am inclined to respond to those who argue that "payment for reproductive materials . . . devalues the contributor" that "it may be even more devaluing of women to not pay them and only allow their participation out of altruism."

Kim Krawiec,  Professor of Law, University of North Carolina Law School
The Politics of Parenthood: Altruism and Intermediation in the Market for Babies
This Article analyzes an important commonality across the various sectors of the baby market: an institutional framework (that is, the laws, institutional rules, and informal norms) that seeks to restrict market access by egg donors, surrogates, and birth parents ("Baby Market Suppliers"), without corresponding restrictions on the market activity of fertility professionals, agencies, brokers, facilitators, and other middlemen ("Baby Market Intermediaries.") One of the defining features of the baby market is thus the legal regime’s formal exclusion of Baby Market Suppliers from the full profits of exchange. The Article employs three specific examples of this phenomenon: (1) organized national, private geographic-based, and state legislative attempts to cap prices paid to egg donors, without similar attempts to restrict prices charged to infertile couples for the bundle of fertility goods and services purchased, including the "donated" egg; (2) state law limits on permissible compensation to surrogates, and legal uncertainty in many jurisdictions regarding the enforceability of surrogacy contracts, both of which operate to complicate decentralized exchange between surrogates and intended parents; and (3) the ban against payments to birth parents in exchange for the relinquishment of parental rights, coupled with an easily circumvented ban against finders fees to intermediaries that does not seek to limit the fees and charges for intermediary services rendered.

The author acknowledges that the limitations on commercial activity by Baby Market Suppliers are malleable and documents circumvention that renders it difficult to assess the full extent to which Baby Market Suppliers are prevented from collecting the market clearing price for their services. This observed circumvention, however, does not render such an institutional framework harmless. At worst, it leads to inefficiently low supply, high consumer prices, and distributional disparities stemming from the distorted division of profits between Baby Market Suppliers and Baby Market Intermediaries. At best, it operates to reinforce gendered notions of women as altruistic marketplace actors, uninterested in the full monetary gains of trade. Moreover, such norms may subtly reduce the economic bargaining power of Baby Market Suppliers. By classifying open materialism by Baby Market Suppliers as improper, the institutional framework may deter the ability of Baby Market Suppliers to fully negotiate the financial terms of their arrangements, as open displays of monetary motivation are deemed socially unacceptable. Finally, and most importantly, this institutional framework cannot be justified as protecting the best interests of children – a goal that should be paramount to regulating the baby market. The Article concludes with a call for the removal of asymmetric institutional features that thwart market access by Baby Market Suppliers.    

     1:25-2:55 p.m. Patents and Nature
Jake Linford, Commentator
Mary Simmerling, Professor, Weill Cornell Medical College, Cornell University
Waste Not, Want Not?: Consent, Compensation, and the Business of Medical Research

Stephen Hilgartner, Associate Professor, Chair, Science & Technology Studies, Cornell University
Intellectual Property and the Politics of Emerging Technology: Inventors, Citizens, and Powers to Shape the Future
Expanding public debate surrounding intellectual property raises the question of whether the foundations of IP policy remain adequate for managing the new, visible politics of decision making in this realm. Are the prevailing conceptual frameworks and institutions underlying patent policy showing signs of losing the ability to convincingly render decision making in this realm into a matter of law, administration, and expert judgment?
This paper argues that there is a mismatch between traditional intellectual property doctrine and the new politics of intellectual property. To examine the nature of this mismatch, I contrast two policy discourses that both appear in contemporary debate about intellectual property: the traditional discourse, which focuses on innovation policy, and a newer, less clearly codified discourse that views intellectual property issues from the perspective of the politics of technology. This latter discourse focuses on the challenges of democratic governance in societies where emerging technologies have assumed "constitutional" significance (Jasanoff 2004; see also Lessig 1999). The traditional discourse still dominates policy discussion, a fact that has inspired some ingenious efforts to squeeze concerns about technology and democracy into the traditional innovation framework. To treat these dimensions of the current debate as separate, as this paper does, admittedly entails glossing over some complexities. Nevertheless, parsing the issues into these two perspectives is a useful heuristic device. In particular, recognizing the specific features of the politics-of-technology perspective—and presenting its distinctive vision of what is at stake in intellectual property—clarifies the struggles now in play.
The paper begins by introducing each policy discourse in turn, then compares them systematically, examining how each views the nature of technological change, the powers that patents convey, the roles of inventors and citizens, and the criteria for evaluating policy. My discussion will focus on patent policy, but some similar issues arise in relation to copyright.

Harriet Washington, Renowned author, editor and journalist
Tissue Colonies: How Medical Distinctiveness Has Driven Profitable Wonders from the Body of the 'Other'
Eighteenth-century physicians and scientists promulgated beliefs about the dramatic biological distinctiveness of African Americans, that have dictated different medical treatment. This history of special distinctiveness has catalyzed a special vulnerability not only to medical exploitation but also to the scientifically and ethically questionable harvesting and marketing of tissues and genes. I will offer examples of how lingering beliefs, often erroneous and unsupported by science, have buttressed the profitable use and analysis of African American tissues and genes, from the marketing of sickle-cell disease to syphilis to BiDil.
More recently, the 1981 Diamond v. Chakrabarty decision has also catalyzed the colonization of black tissues by enhancing their profitability by permitting the issuance of life patents and related patents. These economic incentives encourage the burgeoning marketing of African American genes and tissues— and by extension, the patenting of medications marketed specifically for African American .
The paper’s discussion will touch upon sickle cell disease treatment, BiDil, DNA sweeps, cord blood and Polyheme (artificial blood).

     3:00-4:30 p.m. Spheres of Law: Tort, Crime and Tax
Anup Malani, Commentator
Song Richardson, Professor of Law, DePaul Law School
Insult, Domination and Retribution:  Punishing Bad Medical Actors
Immanuel Kant wrote that individuals should never be used as a means for the ends of others. Yet, in the name of medical research, doctors have long violated human dignity and autonomy. The experiments on enslaved girls and women, the atrocities of Nazi Germany, and the infamous Tuskegee syphilis study surreptitiously conducted on African Americans are cogent examples.
Violations of bodily integrity and autonomy in the name of medical research continue unabated today. A researcher at the University of California surreptitiously harvested his patient’s body for tissue for seven years in order to obtain a lucrative patent. And when eighteen year old Jesse Gelsinger died four days after participating in gene therapy trials at the University of Pennsylvania, a subsequent investigation revealed that researchers intentionally failed to disclose serious side effects and animal deaths that would have ended the trial before Jesse Gelsinger volunteered to participate.
What should be done when individuals are not treated with the dignity they deserve as human beings in the name of medical progress? Scholars argue that increased regulation and greater use the civil sanction are necessary to better protect individuals. However, all have ignored the role of criminal punishment. This article fills that void.
Through the lens of expressive retribution as developed by philosopher Jean Hampton, this article argues that wrongdoers should be punished when their conduct expresses an affront or slur to human dignity. Starting from the Kantian premise that all humans are of equal value by virtue of being autonomous and rational beings, acts which send false messages about relative worth, acts which insult and degrade the inherent value all humans possess, justify a retributive response to humble the offender. This article argues that the abuse of individuals by doctors in the name of medical progress expresses an insult to human dignity that justifies a retributive response in the form of criminal punishment to correct the false message about value.

Dorothy Brown, Visitng Professor, Emory University, Professor of Law, Washington and Lee University
Contested Commodities: What’s Tax Policy Got to Do with It?
Whether the shortage of organs available for transplant should be addressed by allowing sales is a hotly contested area. This essay seeks to step into the fray by describing how tax law has already spoken in the area of blood plasma sales and blood donations. Any discussion of organ donations and/or sales must also consider tax policy because as Chief Justice Marshall said in McCulloch v. Maryland, the "power to tax involves the power to destroy."