Jacob M. Appel2013-05-20T09:38:47-04:00Jacob M. Appelhttp://www.huffingtonpost.com/author/index.php?author=jacob-m-appelCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Jacob M. AppelGood old fashioned elbow grease.Want a Gun? Get a Prescription!tag:www.huffingtonpost.com,2011:/theblog//3.8063592011-01-09T10:16:14-05:002011-05-25T18:25:24-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The Gun Control Act of 1968, passed in response to the assassination of Robert Kennedy, bans gun ownership by anyone who "has been adjudicated as a mental defective or has been committed to any mental institution." In a rare act of bipartisanship in 2008, following deranged student Seung-Hui Cho's murder of thirty-two people at Virginia Tech, Congress passed legislation that essentially required states (through threat of lost funding) to provide data on psychiatrically unfit individuals to the National Instant Criminal Background Check System (NICS). These efforts are certainly commendable, but they have done far too little to protect the public. If we continue to stand back and wait for psychiatrically disturbed individuals to come to the attention of authorities through their own actions, we will continue to have massacres like those in Virginia and Arizona.
American society has a long history of accepting -- and even embracing -- appropriate medical screening prior to engaging in potentially-dangerous activities. We require would-be drivers to take eye examinations; we do not merely wait around for blind folks to plow vehicles into traffic and then incarcerate them. We require airplane pilots to blow into breathalyzers, and train engineers to have their urine screened for narcotics, and physicians to have skin tests for tuberculosis. If you want to adopt a child, we send a well-trained social worker to your home to make sure that you are at least superficially fit for the challenge. Gun-ownership stands out as one of the only areas in which we do not screen for a public threat before approving a potentially lethal activity.
A prescription requirement need not be onerous. Requiring a brief psychiatric check up prior to issuing a gun license, and possibly a renewal every fixed number of years, could be done in a manner to impinge only minimally upon the activities of psychiatrically healthy gun owners. While mental health remains in some respects a nuanced art, it does not require great psychiatric acumen or years of Freudian analysis to determine that a man like Jared Loughner ought not to be packing heat. In states with significant gun-owning populations, mental health workers might even be employed by the state to conduct such screenings on-site. Needless to say, if we are to ensure compliance and to prevent a backlash against such screenings, the government would be wise to pick up the entire tab. With time, gun owners would surely come to see such screenings as routine -- like annual car inspections -- and the massacres prevented might change public perceptions regarding lawful gun ownership.
Firearm prescriptions, if they ever do gain traction, are not likely to do so overnight. In the interim, medical and mental health professionals need a more effective mechanism for preventing dangerous patients from carrying weapons and for removing firearms from the homes of those unfit to possess them. The reality is that psychiatrists see many patients who are a chronic threat to the public, but do not meet the narrow prohibitory standards of the 1968 statute or require permanent institutionalization. Healthcare workers are rarely (if ever) willing to go to court to have patients declared "mentally defective" if their primary concern is the potential misuse of firearms. What is needed in the short-run is a "do not shoot" registry akin to the federal government's do-not-fly list. Under such a system, two independent physicians could evaluate a patient in a clinic setting and then -- if they deem it necessary for public safety -- they could refer his name to the state, through a simple, standardized mechanism, for suspension of his privilege to hold firearms, pending further review. This reference would also trigger a home visit by authorities to remove firearms.
Nobody can say with certainly whether such a policy might have prevented any particular shooting massacre. However, common sense suggests that increasing the barriers to gun possession for the mentally ill will inevitably save human lives.
]]>Tempest in a Womb: What's Wrong With Preventing (Or Promoting) Homosexuality In Utero?tag:www.huffingtonpost.com,2010:/theblog//3.6552272010-07-22T00:33:48-04:002011-05-25T17:10:24-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The specific controversy that has provoked this larger debate involves an experimental treatment for congenital adrenal hyperplasia (CAH), a heterogenous group of recessive genetic syndromes in which females often have "masculinized" or "intersex" external genitalia. Treatment with a corticosteroid, dexamethasone, in utero, appears to reduce significantly the incidence of such ambiguous parts. However, the two leading proponents of this approach, endocrinologist Maria New of Mount Sinai Hospital and psychologist Heino Meyer-Bahlburg of Columbia University have come under attack in recent weeks for another possible consequence of such therapy: reducing the number of CAH patients who grow up to be lesbian or bisexual. (Those readers interested in the physiology should read "Sexual Orientation in Women with Classical or Non-Classical Congenital Adrenal Hyperplasia as a Function of Degree of Prenatal Androgen Excess," an article published by Meyer-Bahlburg, et al, in the Archives of Sexual Behavior in 2008) For the sake of full disclosure, I should note that while I also practice medicine at Mount Sinai, I have never interacted with Dr. New.
In a column titled "Preventing Homosexuality (and Uppity Women) in the Womb?" that appeared in The Hastings Center's prestigious Bioethics Forum in June, three prominent thinkers on sexuality -- Alice Dreger of Northwestern University's Feinberg School of Medicine, American University's Ellen Feder and Anne Tamar-Mattis of Advocates for Informed Choice -- lambasted Meyer-Bahlburg and New for the social implications of their work. They wrote: "
While everyone has been busy watching geneticists at the frontier of the brave new world, none of us seem to have noticed what some pediatricians are up to. Perhaps it is because so many people are fascinated by the idea of a 'gay gene' that prenatal 'lesbian hormones' have slipped past public scrutiny. In any case,...activists for gay and lesbian rights should be wary of believing that claims for the innateness of homosexuality will lead to liberation."
Instead, the authors raise the unwelcome specter of such technology being used to straighten gay fetuses prior to birth.
What is not intuitively clear is why some couples choosing not to have gay babies is harmful for society or for the babies themselves. I should emphasize that this is not a choice that I would make personally. But presumably many of the prospective parents who would make such a choice are precisely the variety of deeply-prejudiced individuals likely to mistreat or disown homosexual offspring. No gay or lesbian child would ever want such a parent. So allowing some bigoted parents to choose against gay kids -- even encouraging them to do so -- would reduce the number of gays and lesbians who suffer through horrific upbringings, or end up running away from home, or committing suicide. Letting anti-gay parents produce straight kids would ensure that more children were wanted children and fewer suffered abuse. Needless to say, the technology would have to be foolproof for the benefit to outweigh the harm, because otherwise an anti-gay parent might occasionally end up with a gay child despite opting against one -- and that poor kid would face an even greater struggle for familial acceptance. But as a utilitarian ethicist concerned with preventing human suffering, and as a gay rights advocate who cares particularly about preventing suffering because of anti-gay prejudice, I would much prefer that a child be born straight than that she endure the pains of parental rejection.
Of course, all parents who choose to have straight babies need not be bigots. Another set of prospective parents, who are not themselves prejudiced, might none-the-less prefer heterosexual progeny because they believe that straight children face fewer social barriers, and less discrimination, than gay children. These couples might well support gay rights. They simply do not want the revolution for gay equality mounted on the backs on their own sons and daughters. "In an ideal world, I wouldn't care whether my child was straight or gay," such a parent might state. "But in the real world, I want to shelter my child from as much pain as possible." While I do not share that sentiment, I can envision a well-intentioned and liberal-minded person harboring such a view.
The assumption of critics, of course, is that parental choice will be used primarily to prevent homosexuality. This is not intuitive. Instead, the identical technology could be used to promote homosexuality as well. In the same way that African-American or Catholic couples pass traditions down to their children, gay couples might choose to have gay children in order to pass culture along from generation to generation. Obviously, many gay couples, like many straight couples, will not care whether their children love members of the same or opposite sexes. On the other hand, one can certainly imagine a veteran gay rights activist preferring a gay son or daughter to continue the struggle. Since all children will be born with a sexual orientation of some sort, and since none is inherently preferable to any other, it is hard for me to understand why this choice would be ethically objectionable.
The primary problem with efforts to turn adult gays and lesbians straight, whether conducted by psychiatrists like Robert Spitzer or religious fanatics like Exodus International, is that it does not work. Instead, such "therapeutic" charades merely increase the suffering of people who should be encouraged to embrace their identities rather than fighting futilely to change them. In contrast, hormonal therapies in utero might someday prove effective at actually altering identities. Today's science fiction has a long track record of becoming tomorrow's scientific fact.
I do not mean to endorse the specifics of dexamethasone therapy for CAH babies, which is controversial for multiple reasons. What I do wish to propose is that one of the principal concerns raised by the implications of such research -- allowing parents to choose their children's sexual orientation someday -- is not the evil that critics fear. I have long argued that our society is far too tolerant of prejudice against gays and lesbians. If Joseph Ratzinger said of Blacks or Jews what he says of homosexuals, he would rapidly find himself as acceptable to civil society as David Duke or David Irving. Bigots should not get a pass just because they wear vestments. However, the way to combat homophobia is not to deny parents the opportunity to have the sort of children they desire -- no matter how misguided their motives. What seems lost to critics of such choice is that the future will likely bring both new technology and social equality. By the time parents can safely choose the sexual orientation of their children, I suspect few of them will actually want to do so. ]]>Rational Rationing vs. Irrational Rationing: The Struggle for the Legacy of Ruben Betancourttag:www.huffingtonpost.com,2010:/theblog//3.6220572010-06-23T03:36:13-04:002011-05-25T16:50:20-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The facts underlying the case are indisputably tragic. In 2008, Betancourt underwent cancer surgery at Trinitas Regional Medical Center, a Roman Catholic hospital in Elizabeth, and later suffered an irreversible anoxic brain injury when his breathing tube became displaced. By 2009, the seventy-two year old was unconscious, kept alive by a ventilator, artificial kidneys and tube feeds. Infected ulcers covered his body. Unfortunately, the patient left no advance directive stating what he wanted done under such circumstances. The team of physicians treating Betancourt determined that he was in a vegetative state and, reportedly in consultation with the hospital's ethics committee, sought to forgo extraordinary forms of therapy, such as dialysis and cardiopulmonary resuscitation. Betancourt's daughter, Jacqueline, who rejected the medical team's view that providing such treatment to her father was merely prolonging the dying process, then obtained a court order for additional care. While the hospital appealed on the grounds that continued interventions were both medically inappropriate and unethical, Betancourt died. However, as the questions raised by this tragedy are likely to arise again in other end-of-life cases, New Jersey's Superior Court is expected to issue an opinion in Betancourt v. Trinitas that will clarify whether physicians and hospitals may refrain from providing costly care that they believe to be unconscionable.
As a general principle, one of the most widely accepted tenets of medical ethics is that patients may make their own treatment decisions -- including under what circumstances to withdraw life support. In cases where patients have not specified their wishes in advance, every state except Missouri allows surviving family members to serve as surrogates. Most mainstream ethicists, both liberal and conservative, support such patient autonomy. They differ as to what should be done if the patient has left no advance directive or surviving relatives -- in which case many progressive bioethicists, myself included, favor letting physicians make the choice to terminate care on behalf of incompetent or incapacitated individual. Yet this is clearly not such a situation. Here, Betancourt's surviving relatives want care to continue at all costs. In essence, this case is the reverse of battles like those surrounding Karen Ann Quinlan and Terri Schiavo, because here the next of kin favors extraordinary care, while the medical providers oppose it. What this case asks is: Are there circumstances in which patient autonomy, as expressed through surrogates, should be overruled in the name of resource allocation and/or sound medical practice? If such rare circumstances ever exist -- and I believe that they do -- then Betancourt v. Trinitas offers an excellent vehicle for the courts to clarify the circumstances under which hospitals may override patients and families.
Many advocates of futile care theory argue that what should matter, in cases such as this, is whether Betancourt was actually dying. To my thinking, this is a red herring. A better question would be to ask whether a strong medical consensus existed that Betancourt was in a permanent and irreversible vegetative state. If so, in a nation of finite healthcare resources, society would be acting reasonably to limit additional medical expenses on his care, even if he wished otherwise. Of course, if Betancourt's family were willing to pay for his care out of pocket, and could find physicians willing to treat him, I would have no objection to their preserving his body in such a state indefinitely. In fact, as I have written in regard to the Jesse Koochin case in Utah, I would have no problem with the family keeping his corpse in their home forever -- as long as they could do so in a manner that did not create public health risks.
There is a fundamental difference, however, between asking to be permitted to keep a vegetative relative on costly machinery, and asking the taxpayers or society as a whole to pay for such machinery. Money spent on vegetative patients is money not spent on preventive care, such as flu shots and mammograms. Each night in an ICU bed for such patients is a night that another patient with a genuine prognosis for recovery is denied such high-end care. Every dollar exhausted on patients who will never wake up again is a dollar not devoted to finding a cure for cancer. While the visible victims may draw the headlines and attract indignant protests from so-called "pro-life" organizations, the invisible victims are people like you and me who will suffer from diseases that are never cured because funds are being poured down a healthcare sieve in order to maintain permanently-unconscious bodies on complex and costly forms of life support. I suspect that the vast majority of people, not knowing in advance whether they will either end up in a permanently vegetative state or be diagnosed with cancer, would prefer that any resources that would be spent on PVS care be reallocated to cancer research -- or some similar enterprise that has the potential to help human beings who might actually recover.
The stark reality is that modern end-of-life ethics are on a collision course with themselves. As technology enables people to remain "alive" on ever more complex equipment, such as bilateral ventricular assist devices and extra-corporeal membrane oxygenation machines, the line between life and death blurs. Soon enough, a patient may be able to remain on such apparatuses for many months, long after meaningful brain function has ceased, until his skin and tissue begins to putrefy. When does such an existence transcend the barrier between living and dead?
Those who favor funding unlimited care for PVS patients tend to view the difference between these cases and other severe illnesses as a matter of degree. As a result, they worry about a slippery slope that might ultimately result in our pulling the plug on the cognitively intact but disabled. Yet PVS patients should instead be viewed as different in kind from other medical cases. In essence, the Betancourt court can decide that physicians and taxpayers only have a duty to provide unlimited care to patients who have a meaningful chance of returning to consciousness. Let us make no mistake about what this would mean: It would mean declaring that the lives of PVS patients are worth less than those of others. Rather than shying away from this outcome, progressive bioethicists should have the courage to acknowledge and to embrace this proposition.
Of course, I do not believe that we should take life-and-death matters lightly. I relish my life as much as the next person. In an ideal world, Ruben Betancourt never would have become ill in the first place. The good news is that, in our lifetimes, we may be able to vastly expand human life expectancies. And someday in the future, although possibly too late for anybody reading this column, we may be able to breed acephalic "shell" bodies into which to transplant human brains, or we may reprogram the ends of telomeres, or we may master some other transhumanist technology that permanently forestalls natural death and allows for eternal life right here on earth. Alas, immortality remains a distant prospect. In the interim, we have no choice but to allocate scarce healthcare dollars in such a way that some lives will be preserved at the expense of others. Those choices are not easy, but they are unavoidable. Once one accepts that premise, and anyone who claims otherwise does not understand basic economics, then a system that favors research and prevention over life support for patients in long-term vegetative states is not only the most reasonable choice, but also the most ethical one.
The specifics of the Betancourt case are complex and challenging. While the usual fringe groups, such as Not Dead Yet, have advocated for the family's position, so have mainstream scholars like futility law expert Thaddeus Mason Pope of Widener University. The hospital apparently did not involve outside experts to evaluate Mr. Betancourt's medical condition, which would certainly seem indicated when matters of life and death are at stake. But the particular details of this unfortunate patient's impairment are of less concern now that he is dead. Far more important is that the court establish clear guidelines for future cases. A courageous decision would ensure a mechanism for determining a patient's condition and prognosis, including such safeguards as an independent second opinion, and would then rule that hospitals do not owe unlimited care to PVS patients. If that freed up money to help other patients in need, or to cure diseases that threaten future victims, it would be a fitting tribute to the memory of Ruben Betancourt.
]]>Are We Ready for Coed Hospital Rooms?tag:www.huffingtonpost.com,2010:/theblog//3.6180282010-06-18T19:23:27-04:002011-05-25T16:50:20-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The segregation of beds into "male" and "female" is not a problem manufactured by bioethicists or philosophers that lacks real-world consequences. Every night across the United States, hundreds--if not thousands--of patients endure extra hours, and even days, waiting in crowded emergency rooms because the hospital beds available are not "gender-appropriate." Nurses and administrators squander valuable time that could be devoted to patient-care shuffling our sick from room-to-room in order to separate the sexes. Priority is given to keeping men and women apart, rather than to minimizing the distress of uprooting and relocating the reluctant victims of this endless game of musical beds. The burden falls particularly heavily upon patients in need of specialty services, such as mental health care, and upon individuals of the gender less frequently in need of those specific services. For example, a mentally-ill female patient with a history of severe substance abuse is likely to wait for a bed on a chemical addiction unit, where the majority of patients are men, solely because she is female.
Ironically, the patients themselves are not even asked whether they would mind a roommate of the opposite gender. It is just assumed that they would--or that their wishes are irrelevant, because such mixing of the genders is inherently unsafe. As the Manitoba carper, Ms. Ingram, told the Winnipeg Free Press, "There are things men need and things women need." Fortunately, sick men and sick woman both need precisely the same thing: medical care. Even if the privacy concerns of ongoing gender segregation had merit--and I am not at all convinced that they do--the significant practical benefits of decreasing emergency room waits during periods of overcrowding outweigh these concerns. I cannot speak for Dr. Smith, but I would much rather have my mother share a room with a man than have her spend the night unattended in a hospital corridor.
The good news is that with regard to coed hospital rooms, the practical benefits dovetail neatly with the ethical ones. Whatever objections some patients may have to sharing a room with a member of the opposite sex--and it is not even clear that many people do harbor such objections--they are fundamentally irrational. Critics of coed rooms often raise the bugaboo of male patients sexually assaulting or harassing their female roommates, particularly if those women are incapacitated. This objection appeals to stereotypes about gender roles, but finds little basis in reality. In the first place, with segregated rooms, male patients can just as easily assault incapacitated male roommates. Sexual violence knows no sexual orientation. In addition, although lurid cases will always draw media attention, and I have no doubt that some cherry-picker will respond to this column with just such examples, sexual assaults have not historically been a significant problem in mixed-gender rooms in Canada or England. People who are sick enough to be hospitalized have far more pressing concerns than harassing or assaulting their fellow patients. Moreover, if our genuine goal were to reduce sexual assaults in hospitals, we would implement meaningful measures to prevent patients from wandering into each other's rooms, such as segregating patients by floors, or having all doors monitored. The same male patients who some nay-sayers are allegedly afraid may assault potential female roommates can currently slip into adjoining rooms and do exactly that with relative ease. Of course, few actually do. If anything, gender-segregated rooms provide the illusion of safety rather than real protection.
A far more plausible explanation for opposition to gender-mixed hospital rooms is old-fashioned prejudice. Because some people have been brought up to fear or dislike sharing a room with a person of the opposite sex, or blush at the prospect of catching a glimpse of an unwelcome body part when a robe slips open, we enshrine and perpetuate this prejudice in social policy. I do not particularly sympathize with such prejudices. The same perverse reasoning was used to segregate hospitals by race in this nation for much of the twentieth century. Today, no hospital would likely honor a patient's request to have a white roommate. I am optimistic that, a generation from now, requests for a male or female roommate will be similarly viewed as ignorant and anachronistic. To paraphrase Supreme Court Justice Oliver Wendell Homes, it is revolting to have no better reason for a rule of law than that it was so laid down in the time of Queen Victoria.
Of course, even if our nation does move toward acceptance of mixed-gendered hospital rooms, such change will not come overnight. Our hospitals could implement such a program slowly--first making such arrangements voluntary, and then charging an additional fee for those who persist in demanding same-sex accommodations, before ultimately eliminating the practice of segregation entirely. I can also understand allowing some flexibility to permit special accommodations for cross-gendered patients and for victims who have survived sexual trauma. But one should have a far better reason for demanding a same-sex roommate that mere personal taste, tradition or the belief that one's God wishes it so. Needless to say, those patients with a religious or cultural objection to inhabiting a mixed-gender room can always shell out for a private room, as some individuals do already to avoid sharing living quarters with members of other races, ethnicities and social backgrounds. After all, we cannot hope to quench prejudice completely. We simply should not enable it.
The most significant threat to social progress is the all-too-common mistake of confusing the familiar with the desirable. They do that in Saudi Arabia, where they have gender-segregated workplaces, and most social interactions between unrelated men and women are curtailed in the name of modesty. Civilized people find such separation not merely distasteful, but deeply immoral, and wish that those who imposed gender-segregation in the Middle East would be treated by the world community with the same contempt as those who imposed racial apartheid in South Africa. Similarly, enlightened westerners are growing increasingly suspicious of religious extremists, of all so-called faiths, who segregate men from women during worship or who prohibit one gender from equal opportunities to obtaining positions of leadership. We find these forms of prejudice intolerable, and rightly so, but largely because they are not our own prejudices. It's much easier to see your neighbors' irrationality than your own.
Fortunately, our own prejudices with regard to gender separation in public facilities and accommodations are starting to crumble. Every year, more colleges permit coed dormitory rooms, which I have little doubt will soon become the norm. Some of the most enlightened schools now also have coed restrooms--which, once our society grows accustomed to them, offer the best long-term solution to lengthy lines outside ladies' rooms at concerts and stadiums. Eventually, we will have coed locker rooms at schools and public swimming pools. When we do, people will look back with either amusement or horror--or both--at the excessive inconveniences that we imposed upon ourselves with our ill-conceived ideas about "modesty." Integrating America's hospital rooms would be a small but meaningful step toward such a gender-blind future.
]]>Are Breasts a Right or a Privilege?tag:www.huffingtonpost.com,2010:/theblog//3.5948372010-05-30T13:38:41-04:002011-05-25T16:40:24-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
This is not the first time a British transsexual has confronted a local health care board unsympathetic to the flat-chested. Earlier this spring, the British media reported on the case of forty-year-old Miranda Lee, a male-to-female transsexual whose friendly neighborhood NHS trust, South East Essex Primary Care, paid for her genital surgery and then refused to pay for her breast surgery. Ms. Lee pled her case in stark terms: "I was born with a female brain, have suffered constant abuse throughout my life, and was even married. In my determination to become a woman, I've lost almost everything...and now the health trust has left me half-man and half-woman." In contrast, supporters of South East Essex noted that, at a time that budgetary constraints led to a long waits for many critical health services, the system could not afford to pay for largely cosmetic procedures.
The transgender appellant in AC v. Berkshire West Primary Care Trust, the ruling handed down on May 25, had, for unclear reasons, refused genital surgery for her GID, but had applied to her local NHS trust for breast augmentation after hormonal therapies failed. She provided expert psychiatric testimony that she suffered chronic distress from her lack of breasts and that her "self-consciousness" had increased with time. In another case several years earlier, Berkshire West Primary Care had paid for augmentation for an eighteen-year-old GID patient suffering from severe depression. Nonetheless, Berkshire West, which remained more than willing to cut off Ms. C's penis on the public shilling, refused augmentation funding. According to the local health board, breast enhancement for transsexuals was not a "core" procedure for the treatment of GID, unlike genital surgery, so it would not be covered. They wanted no part in making mountains out of molehills.
One cannot assess the NHS policy toward transsexuals without comparing it to the treatment of breast cancer survivors. In Great Britain, women who have had therapeutic mastectomies have their reconstructive surgery paid for in full by the taxpayers. Although the United States does not have national health insurance, reconstructive breast surgery is guaranteed for virtually all holders of private insurance under the Women's Health & Cancer Rights Act of 1998. Medicare also covers such reconstructive surgery, as do most (and possibly all) state Medicaid plans. The purpose of such funding, which seems both reasonable and compassionate, is that reconstructive surgery may be in the psychological best interests of certain patients. Needless to say, breast enhancement may also serve the psychological best interests of Gender Identity Disorder patients. But one should not lose sight of the fundamental fact that both "reconstructive" breast surgeries for cancer patients and "enhancement" surgeries for transsexuals are inherently cosmetic procedures. Nobody dies for a lack of breasts. In fact, 80 percent of mastectomy patients choose against reconstruction. If policy makers are going to distinguish between the two groups of patients, they should have a stronger foundation for their guidelines than their personal belief that cancer victims are more deserving than people whose brains do not match their genitalia.
The reality is that breast size has significant psychological and social implications for many women. I do not in any way to mean to suggest that it should: Anyone who judges another human being by the size or shape of her cleavage is a first-rate idiot. But until everyone shares that view, women must live in the world as it is, not in the world as it ought to be. One cannot help sympathizing with the views of Jenna Franklin, the fifteen-year-old English girl who launched a public campaign in 2001 to obtain permission for breast implants on her sixteenth birthday. Franklin, who wore a 34A brassiere, sought C or D size cups. She told the BBC: "You've got to have breasts to be successful. Every other person you see on television has had implants. I used to pray my boobs would grow. Then I just thought, what's the point when I can have implants when I want? I just want to be happy with my body and I think having my breasts enlarged will give me more self-confidence." Franklin was denied surgery at age sixteen. (I do not know whether she has sought enhancement since -- but, whether or not, I hope she has found happiness.) I suspect Franklin's experience is the subjective experience of many other girls. Some suffer depression as a result, while others face fewer professional and romantic opportunities as a result of their physical anatomy. Why are they any less entitled to cosmetic surgery than cancer survivors or transsexuals?
In drawing an arbitrary line between breast cancer survivors and transsexuals and flat-chested teenagers with low self esteem, we fall victim to the fallacy of naturalism. Somehow, making women "whole" after cancer is different from "enhancing" them beyond their normal size -- even if their normal size is substantially below average. But one could easily view extremely flat-chested women as less-than-whole and socially handicapped -- as insurers choose to do, for example, in cases of children with cleft lips. Moreover, assuming both groups of women have suffered, does our society really want to entangle itself in the business of comparing their suffering? Admittedly, paying for breast enhancement for the flat-chested caves in to many disturbing stereotypes regarding breast size and human (particularly female) worth. But so does reconstructing breasts after a mastectomy. (How many of the self-styled feminists who chastised Jenna Franklin for buying into a "beauty myth" were willing to criticize Olivia Newton-John for not embracing her scar?) Yet once we reject the naturalist fallacy that we are making some women "whole" while merely "enhancing" others, we confront the challenge of whether we are willing to fund breast surgery for any women or men who desire it? And how can we justify such expenditures at a time when many in the world go without any healthcare at all? On the other hand, are we willing to render breast enhancement -- with its concomitant psychological and apparent social benefits -- a privilege of the wealthy?
King Solomon might have split the difference and agreed to enlarge one breast per woman, but no contemporary student of ethics or policy should view these as easy questions to answer. The very distinction between "medical" and "cosmetic" often reflects social, rather than biological, principles. Maybe we should publicly fund all "elective" surgeries, recognizing that the desire for such procedures is entirely subjective, and that the value of large breasts or a straight nose or a full head of hair is too personal to be assessed by a panel of experts. And before we declare this approach to be a major waste of public funds, we should at least consider the possibility that the personal happiness, and increased productivity, and savings on long-term psychiatric care, generated by such free "cosmetic" surgery might more than pay for the initial costs. Or maybe it would cost society a fortune -- but we'd all be happier.
What should be clear is that many of our current rules in this field are rather arbitrary and ill-considered -- among these, the British policy that pays for genital surgery and hair-removal for transsexuals, but not for breast enhancement. It should not really matter whether breast enhancement for certain GID patients is a "core" medical necessity or merely a service that can vastly improve their lives. What ought to matter is that a human being is suffering and the medical establishment has the technology and resources to help.
]]>After St. Joseph's: Are Women Still Safe in Catholic Hospitals?tag:www.huffingtonpost.com,2010:/theblog//3.5780862010-05-16T21:23:33-04:002011-05-25T16:30:24-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The Irish nun at the center of the case is Sister Margaret McBride, an administrator at St. Joseph's Hospital and Medical Center in Phoenix. McBride was part of a hospital ethics committee that approved the termination of an eleven-week-old fetus after the mother developed a case of pulmonary hypertension that threatened to kill her if she continued with her pregnancy. Although the specific details of the case have not been revealed for reasons of patient privacy, Catholic Healthcare West, which operates the hospital, has described the woman's death, in the absence of termination, as all but certain. In response, Mr. Olmstead declared that the nun was "automatically excommunicated" and warned that: "While medical professionals should certainly try to save a pregnant mother's life, the means by which they do it can never be by directly killing her unborn child. The end does not justify the means." Although St. Joseph's Hospital defended its decision, it subsequently demoted McBride -- an obvious signal to other well-intentioned clergy at other Catholic healthcare providers. Like many Catholic hospitals, St. Joseph's has long had two conflicting policies regarding maternal-fetal conflict on its books. One directive states that abortion is never permitted, even to save the life of the mother, while the other notes that "operations, treatments and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted...even if they will result in the death of the unborn child." Until this recent incident, pregnant women could safely assume that Catholic hospitals would follow both the law and widespread standards of medical ethics in allowing the second directive to trump the first. Suddenly, that time-honored understanding appears to be in jeopardy.
Mr. Olmsted has a reputation as a particularly stone-hearted and intransigent figure, even by the orthodox standards of Vatican hierarchy. He previously gained notoriety for refusing communion to a ten-year-old autistic child who could not swallow and later spearheaded an effort to incorporate local church parishes individually in order to shield the Phoenix archdiocese from suits by sex-abuse victims. He has also been a fierce and vocal critic of President Obama. But Mr. Omsted's pronouncement--rather than the deranged cries of a renegade cleric--reflect a broader, deeply disturbing trend that is reshaping Catholic healthcare. Earlier this year, I drew attention to the revision of Directive 58, which now prohibits Catholic hospitals from honoring the wishes of patients--both Catholic and non-Catholic--who wish to be removed from unwanted life support equipment such as ventilators. The new policy, like the new abortion rule, is both patently illegal and widely regarded as unethical by mainstream secular and religious thinkers. Inevitably, both policies will be challenged in the courts. However, in the interim, pregnant women must ask themselves whether they can trust their care to any Catholic hospitals in the United States. Without overt assurance from the Vatican, I fear that the answer is a resounding NO.
Exactly how much risk to accept before terminating a pregnancy is certainly a difficult choice for any woman and any family. If I served on a hospital ethics committee, I would permit a pregnant woman with capacity to forgo an abortion, even if that meant her certain death, although I would do so with profound sadness. Competent adults have a right to make their own decisions -- no matter how misguided the rest of us may view them. That is the fundamental underpinning of contemporary medical ethics. Unfortunately, it appears that principle may no longer apply at Catholic hospitals, which provide approximately one-third of medical services in the United States. As a matter of public policy, these hospitals -- as public institutions that survive on public funds -- should be and are compelled to terminate pregnancies in medical emergencies. But if my life were at stake, or that of a woman I loved, I would not want to risk the chance that a woman less enlightened or flexible than Sister McBride was the ethicist ruling on my case in a medical emergency. So let me make this clear: At the present moment, as a physician, I would not feel comfortable with a woman I cared about seeking obstetric services at a Catholic hospital. In fact, I would not want a pregnant woman I cared about obtaining any medical treatment at a Catholic hospital. From this point forward, I will tell my pregnant patients, in all but the most emergent and high-risk circumstances, to instruct any ambulance that picks them up to avoid Catholic hospitals. That is tragic, because these institutions have a long and noble history of providing care to this nation's needy and most desperate. Alas, thanks to men like Mr. Olmsted, obtaining obstetric care at a Catholic hospital has become a dangerous game of Russian roulette.
Of course, as a pregnant woman, one is never certain that even a secular hospital will honor one's wishes. Anyone who reads this column is familiar with the case of Jana Bures-Forsthoefel, a rogue obstetrician who allegedly held patient Samantha Burton as a legal hostage for several days when the patient sought a second opinion from a different provider. (Of note: Five months have elapsed since the ACLU publicized this tragedy and, to my knowledge, Bures-Forsthoefel remains unwilling to explain her conduct or to refute in public the grave charges against her.) The Burton case arose at Tallahassee Memorial Hospital, a private, non-denominational institution. At the same time, I have no doubt that some Catholic-run hospitals remain safe, loving and respectful places for women to give birth. Some Catholic hospitals will let a woman decide if, and when, she wishes to die to preserve the life of her fetus. Regrettably, at the present moment, there is no way to know which hospitals are which -- to separate the wheat from the chaff.
The St. Joseph's incident, coming only months after Directive 58, should force Americans to reconsider the relationship between the Catholic Church and our healthcare system. Catholic hospitals, although run by the Vatican, survive only because American taxpayers subsidize them through Medicare, Medicaid, tax exemptions, research grants, residency training payments and scores of other benefits. But if the Church cannot agree to honor the basic tenets of medical ethics -- such as respecting end-of-life wishes or letting a mother choose her own life over that of an eleven-week-old fetus -- maybe the Catholic Church has no place providing healthcare at all. Moreover, maybe the public should regard its healthcare institutions with greater scrutiny. You shouldn't get a free pass from criticism just because you wear a cassock.
As a religion, which seeks to instruct its own adherents, the Catholic Church is entitled to do as it pleases. As an institution that has played an integral role in furthering art and culture for two thousand years, it is deserving of respect. On the other hand, as a political ideology that seeks to impose its most fanatical and potentially lethal ideas on non-believers, often clandestinely through hospital bylaws, Catholic extremism should be resisted as fiercely at home as we oppose the Taliban abroad. Mr. Olmstead, of course, is entitled to his opinion. As, indeed, are Mr. Ratzinger and his minions in Rome. So are the mullahs in Afghanistan and the proponents of sharia law in Saudi Arabia. It's a free country, so to speak. The fundamental difference is that we don't allow the Afghan mullahs or the Saudi Wahhabi to run our hospitals.
]]>Transcending Ovaries: Toward Male Equality in the Abortion Debatetag:www.huffingtonpost.com,2010:/theblog//3.5598432010-05-01T18:09:46-04:002011-05-25T16:20:27-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The remark proved memorable enough that it was picked up by New York Times opinion columnist Charles Blow, whose otherwise excellent Op-Ed on the wave of anti-abortion legislation that is sweeping through state legislatures made an explicit endorsement of this sentiment. The underlying premise seems to be that since women are the ones forced to bring unwanted fetuses to term when abortion rights are curtailed, they have a greater stake in the outcome of such debates -- and therefore more right to influence policy on the subject.
I can sympathize with the frustration that might lead to such an outlook. At the same time, as someone without ovaries who has written and marched for reproductive freedom through my entire professional life, and who has been threatened repeatedly as a result, I fear the ongoing effort to frame the abortion debate primarily in gender terms remains both politically unwise and ethically unsound. Rather than urging men to stand down, abortion-rights advocates should reach out to convince men that they have a deep and equal stake in preserving reproductive choice.
An unfortunate public perception -- advanced by the media and abortion opponents, but all too often accepted by feminist organizations -- is that abortion rights are inherently and primarily a women's issue. This is actually a dangerous concession to those who would restrict or criminalize abortion. Any meaningful philosophical or policy debate over abortion should begin with the question: When, if ever, does a fetus acquire enough "personhood" to limit significantly the rights of another human being? For if fetuses did possess the same degree of "personhood" as born people, then no rational thinker would favor abortion rights. Instead, abortion would be akin to a situation in which one of two conjoined twins sought to murder the other in the name of personal freedom.
Those who favor abortion rights presumably share my belief that fetuses do not possess "personhood"-- that they are not meaningfully human. That is very different from declaring that fetuses are fully-realized human beings, but women should be able to abort them anyway. Defining abortion as a "women's issue" all too easily enables opponents to characterize the struggle as one between the "rights of the mother" and the "rights of the child" -- which, to pro-choice thinkers, it most certainly is not. Often, this leads abortion-rights advocates to be perceived as agents of identity politics, as part of a special interest group (i.e. women) promoting its private agenda.
Rather than "winning" the abortion debate, efforts to tag abortion opponents as bigoted against women merely cloud the underlying issues. For example, the proposition that it is sexist for states to pay for Viagra but not for abortion, which one hears all too often in liberal circles, sounds speciously appealing, but is actually rather reductive and shows a stunning inability to grapple with the ideology of abortion opponents. (If one believes abortion kills babies, as some folks sincerely do, of course the taxpayers shouldn't pay for it.) I can think of hundreds of powerful reasons why the government should pay for abortions--but the frequent claim that it's sexist to pay for ED drugs, but not pregnancy termination, or even women's contraceptives, is so deeply illogical and philosophically simplistic that it actually adds to the challenge of making the case for public funding.
When pro-choice advocates emphasize the leading role that men play in organizations opposed to abortion, they compound this perception. It is certainly true that a sizeable number of anti-abortion leaders are bankrolled by, and subservient to, the Vatican, and that Pope Ratzinger reserves all meaningful positions of power in his church hierarchy for men. However, many of the most radical critics of abortion rights are women, including Operation Rescue's Cheryl Sullenger and the Army of God's Shelley Shannon -- not to mention the nation's most outspoken (if not articulate) abortion opponent, Sarah Palin. To say that Antonin Scalia opposes Roe v. Wade because he lacks ovaries does little to explain the jurisprudence of Harry Blackmun or William Brennan. I do not know exactly what percentage of anti-abortion leaders are male or female, a meaningless figure that inevitably varies based upon how one defines the sample. But I am confident that describing 77% of anti-abortion leaders as men, as one popular T-shirt does, is not particularly relevant, and is possibly even counterproductive.
So why should abortion rights matter to men? The most obvious and dramatic reason, although likely not the most persuasive, is that the lives lost through illegal abortions will be of our sisters and daughters and partners. I have often heard that interest described as "secondary" -- after all, some naysayers ask, how can one compare a woman's interest in her own life or health with a male relative's interest in her wellbeing? The reality is that many males do value of the lives of their loved ones, and particularly their daughters, as much as their own. Needless to say, so do women.
To put the matter more bluntly: I know many men who would gladly suffer a slow death themselves if it could prevent their wives or girlfriends or daughters from succumbing to septic shock on a mattress in an underground abortion clinic. Anyone who argues that men don't merit an equal voice in the abortion debate does a grave disservice to these fathers and brothers and partners.
The second reason that abortion is a men's issue is that the entire sexual revolution, from which boys benefit as much as girls, relies heavily upon the right of pregnant women to terminate unwanted pregnancies. Couples, both single and married, would risk intimacy with considerably less frequency -- and would deny themselves one of life's greatest pleasures -- if they knew that the outcome might be a child that they had no desire to bear or raise. Personally, I would never have intercourse with a woman unless I were highly confident that she would terminate a pregnancy that we were not both ready for. If the law were ever changed to prohibit that option, I doubt that I would have sex with anyone until I was prepared to start a family. Recognizing that no form of birth control is ever foolproof, not even the rhythm method, I imagine most intelligent, responsible men and women, if denied an opportunity for legal termination, would make a similar decision to forgo certain forms of sex.
In fact, many abortion opponents relish the prospect of rolling back the sexual progress of the 1960s and 1970s. Pro-choice women would do well to emphasize this to their lovers. These women could take a page from Aristophanes, whose play Lysistrata relates how the women of Greece deny their husbands sexual privileges until they agree to abstain from warfare. If pro-choice women consistently refused to sleep with anti-choice men, or even men who were indifferent or who voted for anti-choice candidates for non-abortion-related reasons, they might be stunned to discover how many new recruits entered the abortion rights movement. Incidentally, if you are single, looking, and reading this, I urge you to add "Pro-Choice Only" to your next personal ad.
Men also have a clear stake in the large-scale social consequences of criminalizing abortion. Assuming all heterosexual couples who did not want children were unable or unwilling to remain celibate, our society would soon swarm with a costly and tragic plague of unwanted children. Inevitably, many of these kids would suffer from severe birth defects -- diseases or disabilities which, with the legalization of abortion, we have made great strides toward eradicating. Taxes and health care costs would inevitably rise to pay for the care of these victims. Other unwanted offspring would compel parents--and here, I suspect the majority might indeed be mothers -- to forgo the educational and professional opportunities that best enable them to raise strong families. Professors John Donahue of Yale and Steven Levitt of the University of Chicago, writing in "The Impact of Legalized Abortion on Crime," and in subsequent research, have even made a persuasive (albeit controversial) argument that criminalizing abortion could lead to increases in violent crime. In short, banning abortion would have significantly negative social consequences that extend well beyond the bedroom. Many of these consequences, although certainly not all, would harm males as much as females.
Arguing that men should have equal say in the abortion debate is not the same thing as claiming that men should have a say as to whether a particular woman, such as a wife or daughter, has an abortion. As a default policy, they should not. But when, if ever, men should have a say at this personal level is a challenge that neither pro-choicers nor society has yet fully grappled with. For example, should a surrogate mother be able to contract away her right to have an abortion? Under what circumstances? Would enforcing such a contract reduce liberty by restricting bodily autonomy or vindicate liberty by increasing the power that women have to make binding choices regarding their bodies? These are challenging bio-ethical questions, even for the most progressive advocates of abortion rights. Certainly men deserve a seat at the table when these issues are discussed.
Increasingly, pro-choice activists are noting the political downside of relegating men to second-class status in abortion discourse. As Amanda Marcotte, a Pandragon.net blogger, recently told Newsweek: "When the anti-choice side pulls energy from both men and women who are eager to halt sexual liberation and control female bodies, and pro-choicers can only look to women, we're already running at half capacity." That is indeed salient political wisdom. But it would be unfortunate if men merely became an auxiliary force in the abortion-rights movement -- or if they were relegated to the sort of secondary role that women have been historically, all too often, in other progressive political movements.
After all, the abortion controversy is not merely a political debate over the rights of women. It is an ethical and social conflict over how we choose to shape our society and a defining struggle for the soul of our civilization. One does not have to fear carrying an unwanted fetus in order to have a meaningful opinion about when live begins, any more than one has to be a slave in order to speak on behalf of the joys of freedom. The reason that Janet Long's adversaries in the Florida legislature should "stand down" is because they are wrong about abortion -- not because of what they have between their legs.
]]>Reproductive Fraud? Sham Pregnancy Centers Face Pushbacktag:www.huffingtonpost.com,2010:/theblog//3.5244672010-04-03T21:33:06-04:002011-05-25T16:05:22-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
Last November, Baltimore's City Council passed a first-in-the-nation statute requiring "pregnancy help centers" that do not provide abortion or birth control services to post signs stating that they do not do so. Austin, Texas, is considering similar legislation this week. In response, the Archdiocese of Baltimore has filed a federal lawsuit contending that such full-disclosure statues violate Constitutional free speech protections. As frivolous as such litigation may prove, it should provide the impetus for other progressive cities from New York to San Francisco to adopt similar protections for pregnant women.
Nobody contends that women seeking to learn about alternatives to abortion should be denied such information. The Catholic Church is perfectly entitled to construct centers that teach that abortion is sinful -- much as they are entitled to establish clearinghouses that advocate against no-fault divorce, homosexuality, equality for women or condom use among HIV-positive Africans. In fact, they have long done so. These institutions are called churches. Parishioners entering a Catholic Church know that they may anticipate such doctrine, and one of the bedrocks of freedom of conscience is that we allow people to propagate such ideas, no matter how deeply misguided or noxious we may find them. Similarly, I am permitted to open a center that preaches for gender equality, free love or even Satan worship. What I may not do is open a center to advocate Satan worship, but place a sign in front that reads, "St. Jacob's Catholic Church, Mass at 7:00 am and 9:30 am," in order to dupe unsuspecting Catholics into hearing my sermons. Yet similar bait-and-switch tactics are precisely the method used by many of these anti-abortion "health" clinics. For some, in fact, their sole purpose is to dupe women seeking abortions into receiving anti-abortion propaganda. Many of these sham clinics, which outnumber actual abortion providers, operate near genuine reproductive health centers and adopt intentionally misleading names that emphasize pregnancy services and women's health. They often target teenagers, women from lower socio-economic strata, racial minorities, and particularly those with limited English language skills. If their goal was to minister to women who share their anti-abortion views or even to the merely curious, they would have no qualms about disclosing their mission at the door.
The only logical reason for concealing the fact that these centers do not offer abortion or birth control referrals is to prey upon women who mistakenly believe that they do. This is not free speech. This is consumer fraud. Much like extortion, blackmail, defamation and shouting false warnings inside crowded theaters, consumer fraud has never been viewed as protected expression. If Campbell's sells me a container labeled soup, but it actually contains sawdust, the company cannot disclaim responsibility by arguing that it has a right to print falsehoods on its merchandise and that I should have looked inside the can prior to purchase. Similarly, once you call yourself a "full-service reproductive health clinic," you should not be able to disclaim responsibility for luring in pregnant women who conclude in error that you provide all reproductive health services.
Baltimore Archbishop Edwin O'Brien has attempted to shift public attention away from the underlying need for the "truth in advertisement" law to the allegedly good work done by these centers. While I confess that I am doubtful that these centers do much beyond purvey false information about the supposed health risks of abortion and contraceptives, the merits of the counseling done at these facilities is entirely beside the point. Nothing in Baltimore's law forces the Catholic Church or any other organization either to espouse ideas it does not believe or to engage in behavior that runs contrary to its ideology. All the law requires is that clinics inform would-be patrons of what they do and do not do.
The Church's lawsuit contends that the law is discriminatory because all health facilities are not required to post such disclaimers and because abortion clinics are not required to post warnings that they do provide such services. This argument ignores the longstanding conduct of these sham centers that have created an ongoing culture of deception. For example, many of these centers once advertised themselves under "abortion services" in the telephone directory until consent decrees forced them to abandon the practice. In contrast, there is no credible evidence of abortion clinics duping women who are not seeking abortions to terminate their pregnancies -- primarily because these clinics are pro-choice, not pro-abortion, so they have a vested interest in a patient's autonomy rather than any particular outcome. Women do not stumble into abortion clinics by mistake. Moreover, there are places in the country where being forced to place a sign announcing that one offers abortion referrals may actually endanger a clinic's professional staff. This climate of violence stems directly from the same protests and disruptive conduct of some of the organizations that run sham clinics. In many communities, any hypothetical pregnant woman at risk of accidentally wandering into an abortion clinic has the reassurance of knowing that a band of zealots with placards depicting dismembered fetuses will greet her at the entryway with shouts of "Babykiller!" Presumably, if she is not seeking an abortion, she will not enter.
Anti-abortion forces have a long history of masking anti-social behavior in the cloak of free speech. Pro-choice organizations have -- with a few rare and unfortunate exceptions -- directed their advocacy efforts to convincing elected officials and voters of the merits of their arguments. They do not disrupt services at fundamentalist churches or issue death threats against bishops. In contrast, the anti-abortion movement has been willing to target hospitals and health clinics in an effort to "convert" individual women at their most vulnerable moments. Such efforts often walk a thin line between protected speech and harassment. Defending sham pregnancy centers with First Amendment claims is yet another attempt by these extremists to target vulnerable individuals rather than shifting public sentiments. That may be tolerable under an ethical system that justifies all non-violent conduct, including fraud, in order to prevent the "murder" of fetuses. It is precisely same type of distorted logic that would enable one to conceal sex abuse by clergymembers in order to preserve the moral authority of a church -- particularly if that led to increased moral suasion in the debates over reproductive rights and homosexuality. Fortunately, it is the sort of deception that ordinary Americans, on all sides of the abortion divide, increasingly find intolerable. Many well-meaning people oppose abortion for a multiplicity of reasons. Most of these same people likely believe that if you are going to run a clinic whose purpose is to talk women out of having abortions, you should have the courage to tell these women upfront.
I suspect that the only reason that other progressive cities have not yet joined Baltimore in enacting such "truth in advertising" statutes is that many pro-choice lawmakers simply remain unaware of the extent of the problem. I am optimistic that the Archdiocese's suit against Baltimore will draw attention to the need for such laws. If nothing else, the publicity may put more innocent women on guard that these impostor clinics exist.
]]>Sexism and the Price of Eggstag:www.huffingtonpost.com,2010:/theblog//3.5210072010-03-31T20:07:58-04:002011-11-17T09:02:45-05:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The primary purpose behind the ASRM's payment caps appears to be concern that higher reimbursement rates will lead to the exploitation of women. Among the risks of egg donation cited by the ASRM's official statement of the matter are "some risk of unintentional pregnancy" because donors must temporarily suspend the use of hormonal contraceptives, some risk of short-term morbidity, an unclear risk of long-term health consequences, a "remote" risk of mortality, and a concern that young women may "dismiss the potential psychologic consequences of donation." Women choosing to donate eggs should certainly be informed that egg harvesting is not risk-free. Some donors develop ovarian hyperstimulation syndrome. Other possible but rare risks include ovarian torsion, cyst ruptures and averse reactions to anesthesia. Moreover, although no long-term medical consequences have yet been demonstrated, health authorities would be wise to track donors over time to ensure that the process is truly as safe as it appears. What is unclear to me is why these risks are any less threatening to women receiving $5,000 per egg than to women receiving $50,000. In other fields of endeavor, from military service to fire prevention, we compensate people more for assuming greater risks. Why then, when the enterprise is one of the few for which women are uniquely suited, do we suddenly decide that additional money will overwhelm common sense? No reasonable person would suggest paying firefighters minimum wage in order to keep them from being exploited by underestimating the dangers of extinguishing blazes. Like firefighters, women who provide their eggs to infertile and gay couples, and increasingly to single women, perform a valuable public service for which they deserve financial rewards commensurate with the sacrifice.
It is conceivable that some egg "donors" will suffer negative psychological consequences -- much as people of either gender can second-guess any life decision. However, other "donors" will use their $50,000 to help pay for an education or to start a business. If we are to have price-controls for egg donation that exist in no other fields, proponents have a burden to explain why such donation is any more exploitative than working low-paying service jobs at McDonald's or Wal-Mart. Egg selling commodifies eggs no more than wage labor commodifies workers. The great irony, of course, is that most cap proponents are not suggesting that women escape the risks of donation. Instead, they will allow women to assume such risks, but then deny them fair market value for their services.
The second objection that the ASRM has to a market-based distribution system for eggs is a concern that couples seeking eggs will pay more to donors who possess traits that they perceive to be desirable--a phenomenon that the ASRM terms "positive eugenics." While this may be true, it is not evident that it is pernicious. Positive eugenics may lead to desirable social outcomes. In the first place, many of these couples will discover to their surprise that, for example, a tall donor is no guarantee of tall offspring. One surmises that IVF parents will still love these children anyway, that they won't suddenly realize when Little Johnny turns eighteen that he stands only five-foot-six--and so cast him out of the house. History has taught us that breeding children is a highly inexact science. But the larger question is why we should be concerned if couples attempt to produce taller or smarter offspring? After all, men and women seeking mates often look for partners who possessed socially-desirable traits and then pass them down to their children? That is also a form of positive eugenics, one that much of our society embraces as truly positive. Why should it matter whether the egg is provided by the partner or purchased from a stranger? Furthermore, nobody complains when parents try to produce outcomes like increased height and intelligence in the postnatal period with glasses of milk and academic tutors. On the list of evils that our civilization faces, a population that is somewhat taller or smarter seems rather benign. As a relatively short person myself, I look forward to having more people to help me change my light bulbs.
The most legitimate concern raised by supporters of caps on payments to egg "donors" is that charging fair value might price some would-be parents out of the marketplace. If raising one's own children is a fundamental and positive right, as suggested by the trend in Western Europe and the United States toward requiring governments and insurers to pay for artificial insemination, then keeping IVF opportunities available to all is certainly important. Price caps may not be the best means of ensuring such equality. If our society's real concern is equal access, the ideal solution might be for the government to purchase eggs on the open market and then distribute them to low-income individuals and couples via public fertility clinics. That would ensure equal access without denying "donors" the right to profit from their eggs.
Another, more disturbing underpinning may explain support for caps among some professional groups and right-wing activist: latent sexism. In a culture that generally allows competent adults to assume large risks in pursuit of financial advancement, we suddenly lower the tolerable risk threshold and wave the bloody shirt of "exploitation" when the financial gain will accrue to women through use of their distinctive reproductive biology. Critics of compensated surrogate motherhood and legalized prostitution and a market for eggs all speak the language of exploitation, but what they actually may fear is that women will harness their own sexuality for economic gain. If Ivy League sperm sold for $50,000 on the open market, "donors" would be viewed as enterprising young men, not potential victims of exploitation. In a world where men could donate eggs, our society would never accept even voluntary price controls, such as the ASRM's, which exert "moral" pressure to keep prices artificially low. That does not mean that selling an egg is without its dangers, anymore than childbirth is without its dangers. In fact, the risks of childbirth are significantly greater. Shouldn't a civilization that not only allows, but often expects, women to assume the hazards of childbearing without any financial compensation also trust these same women to decide whether selling their eggs is worth the risk?]]>Scavenging for Organs: Why the Donor Famine Justifies A Radical Harvesttag:www.huffingtonpost.com,2010:/theblog//3.4994792010-03-15T14:09:19-04:002011-05-25T15:50:25-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
Under current law in all fifty states, a person is presumed not to be an organ donor upon his death unless that individual or his family takes active steps to convey his willingness to make his organs available for transplant--with the precise requirements and standards varying by jurisdiction. As a result, many cadaveric organs go to waste, not because would-be donors actively opposed giving their hearts and corneas, but because they have never thought about it. In contrast, many European nations--including Spain, France, Belgium, Austria, Denmark, Norway and Belgium--presume that a person wishes to donate her organs upon death unless she specifies otherwise. Senator Risinger's proposal would establish an Organ Donor Opt Out Registry, letting the small minority of individuals committed to burial with all their organs to log their names with the Illinois Secretary of State. Physicians would then consult this registry for matches, prior to going ahead with transplantation, much as airlines consult the Department of Homeland Security's "do not fly" list. This is precisely the sort of safeguard needed to ensure that organs are not taken over deeply-held religious or cultural objections.
Presumed consent is not the only non-traditional means of increasing the available pool of organs. An even less controversial--although possibly more expensive-- alternative is a "mandated choice" system in which all citizens are required to specify whether or not they are willing to donate organs upon death. The Royal College of Physicians proposed such a model for Great Britain last fall. A "soft" mandated choice system would also allow for a third option beyond "yes" and "no," in which respondents could instruct doctors to "ask my relatives." The advantage of mandated choices--which, in the name of full disclosure, I have advocated for in the past--is that it ensures that nobody with a strong opposition to donation slips through the cracks, as might theoretically happen in a presumed consent system. Its obvious disadvantage is the economic and bureaucratic cost of contacting and registering the entire population. The American Medical Association has for many years encouraged both mandated choice and presumed consent experiments without choosing between approaches.
A third alternative, recently adopted by Israel, grants those who register as organ donors first claim to donor organs. Such an equitable system proved necessary in that country because of the nation's religious-secular divide: Some ultra-orthodox Jews who oppose donating vital organs under any circumstances were none-the-less lining up to receive them, in essence freeloading off the generosity of their secular brethren. To the extent that similar fanatics attempt to game the system in this country, Congress should authorize UNOS to give priority in organ allocation to individuals who are themselves willing to donate--obviously making an exception for those medically unable to do so.
Finally, a fourth method of ensuring increased organ donation would involve economic incentives to potential donors. One need not establish a full-fledged organ market, such as Iran's state-coordinated program, to create such incentives--particularly if one fears exploiting would-be sellers or decreasing the availability of altruistic donor organs. However, merely offering such basic financial amenities as paid medical leave for living donors and free burial or tax breaks in return for cadaveric gifts could nudge those on the fence. While there is nothing inherently unethical in such a system--particularly if operated with meaningful safeguards--measures like "presumed consent" or "mandated choice" may obviate any need for a compensation-based initiative.
Senator Risinger's brave, bipartisan proposal, which is co-sponsored by Democratic Senator Dave Koehler of Peoria and Republican Senator Pamela Althoff of Crystal Lake, has strong support among health care providers and hospital administrators of all religious persuasions and cultural stripes. It will save lives--and that's a hard bottom-line to argue against. Nations which have adopted systems similar to that proposed by Senator Risinger have among the shortest waiting lists for organs in the world. In Belgium, for example, fewer than 2% of the population has chosen to opt out since that nation adopted presumed consent twenty-three years ago. Moreover, there is absolutely no empirical evidence that Belgians are being murdered for their organs or that any of the other fantastical abuses claimed by opponents have taken place.
Of course, evidence rarely silences ideologically-motivated nay-sayers. Already, some opponents of the proposal have attempted to cloud the issue by raising tangential questions regarding the definition of "brain death"--inadvertently revealing their own hidden agenda, the prohibition of all cadaveric organ donation. Ironically, some of these opponents even claim the mantra of being "pro-life" or favoring the rights of the disabled and the most vulnerable--even though the lives of disabled and vulnerably patients are precisely those which will be saved by the legislation proposed by Senator Risinger. I am only hopeful that other lawmakers will favor the welfare of the many silent victims of the organ famine over the apocalyptic cries of ideologues and their hollow warnings that we are somehow slipping down a slope toward killing innocent people for organs. We are not. What we are doing is addressing an epic crisis with careful and pragmatic solutions. All too rarely do I find myself on the same bioethical page as a conservative Republican politician from the heartland, so I take particular pleasure in advocating for this wise leader and his cause.
Someday, unwanted fetal organs or organs grown in laboratories from harvested stem cells may entirely eradicate the need for human-to-human organ donation. Alas, that day remains in the future. In the meantime, the desperate shortage of vital organs demands outside-the-box thinking and radical action--not merely bumper stickers and public service announcements. I am hopeful that legislators across the nation will take note of Senator Risinger's proposal and will offer similar bills for consideration in their own states. These politicians should make enactment of such programs a legislative priority, as they would with any other series of bills that could save eighteen lives a day. For the thousand of patients in need of hearts and lungs and livers, human beings who are not dead yet, but will be soon, a legislative session may prove too long to wait
]]>Should Children Have A Right to Die?tag:www.huffingtonpost.com,2010:/theblog//3.4843182010-03-03T14:21:13-05:002011-05-25T15:45:22-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/over the age of eighteen. Such an emphasis on the suffering of adults is understandable. After all, the illnesses most likely to create a demand for lethal prescriptions, from cancer to ALS, increase in frequency with age. Unfortunately, much less attention has been paid to efforts to hasten the deaths of pediatric patients who lack any hope of recovery. That is why advocates for children should welcome an impressive study, published this week in the Archives of Pediatrics & Adolescent Medicine, which revealed a considerable interest in euthanasia among the surviving parents of children who had died from cancer. In interviews with 141 such parents, Dr. Veronica Dussel and her colleagues found that greater than 10% considered hastening their children's deaths, and that at least three families believed that physicians had expedited the deaths of their children in direct response to their requests. While the loss of a child to cancer is certainly a tragedy of the greatest magnitude--and one in which it is difficult to imagine finding any silver lining--the courage of these parents in sharing their views with investigators might prove the impetus our society needs to drive pediatric aid-in-dying out of the medical closet. In an era of parental rights and child welfare, maybe we are finally ready to grant suffering minors the right to die.
The medical establishment's longstanding and inadequate solution to the suffering of terminally-ill patients, both children and adults, has been to rely upon the convenient ethical fiction of "double effect." According to the "double effect" principle, administering life-shortening medications such as morphine to a patient is permissible if the primary intent is to ease pain--although a faster demise is a likely or inevitable secondary consequence. Thomas Aquinas first proposed this moral sleight-of-hand in the thirteenth century, when defending killings in self defense, and Pope Pius XII overtly endorsed such an approach to medical care in February, 1957. The American Medical Association and the American Academy of Pediatrics, which both oppose so-called active euthanasia, have embraced the doctrine as well. Yet the challenges of relying upon this clever if hazy principle far outweigh the benefits. Needless to say, many physicians will disagree about precisely when pain control ends and aid-in-dying begins--and the result may be that children continue to suffer. Fear of law enforcement drawing this same line in an overly-conservative manner may also scare some well-intentioned oncologists and pediatricians into withholding medication necessary for pain control. Few physicians, no matter how noble and dedicated, are willing to risk a second degree murder charge in order to incrementally reduce the suffering of a patient who will soon expire anyway. Yet even if the "double effect" approach could guarantee that all afflicted children might die without experiencing any physical pain or corporeal discomfort, which is highly implausible, such an approach would do little to staunch the emotional and existential anguish of the patient or her survivors.
One powerful exchange that has been quoted extensively in the media since the appearance of Dussel's study is that between David Reilly, the father of a five-year-old boy who died of cancer in 1999, and his physician, Joanne Wolfe of the Dana-Farber Cancer Institute in Boston. If the child's soft-tissue tumor ever threatened to choke his son to a "horrible, horrible" death, Reilly reportedly asked, "Can we just get it over with quickly?" Wolfe refused. As a result, not only did Reilly endure the loss of his child, but also the solace of knowing that an "out" existed if such suffering ever became intolerable. Yet it is this hypothetical possibility of assistance with dying--as much as any tangible aid--that would provide some meaningful comfort to the parents of many critically-ill children. In the same way that more terminal patients investigate physician-assisted termination in Oregon and the Netherlands than actually use it, the greatest benefit of a legal right to die may stem from the sense of autonomy and empowerment that having such a right grants to individuals who have lost control of almost every other aspect of existence. For the parents of a critically-ill child, such an "escape hatch" might well prove particularly comforting. In contrast, feeling morally compelled to request terminal help that parents know is illegal might further compound their distress.
One of the bedrock tenets of American law is that parents may make medical decisions for their children except in the rare and extreme circumstances where parental wishes and societal notions of child welfare conflict. In the case of young children who cannot understand medical matters, parents are permitted to consent vicariously to their treatment. Our society takes such an approach to pediatric care because--excluding active threats to the public health--we generally believe that parents have a right to raise their offspring as they see fit, and that children are more likely to share the values of their mothers and fathers than those of medical personnel or hospital administrators. So if we are going to carve out an exception to parental authority with regard to end-of-life matters, we would need a compelling reason. Such a justification might exist in the extremely unlikely case where an older child left instructions opposing a hastened death or remained lucid and actively sought extraordinary care, and yet parents sought early termination anyway--a scenario which would clearly raise a compelling argument for overriding parental will. However, if an unconscious, terminally-ill child's views are unknown, or a dying child is simply too young to comprehend death, parents ought to have every right to declare "enough is enough" and to obtain assistance from a physician in bringing a family tragedy to a speedy and decisive conclusion. Moreover, the parents should be allowed to make such a request legally and publicly, without shame or stigma, rather than having to rely on the sub rosa tactics of brave but discreet providers.
In an ideal world, of course, no children would ever suffer from terminal disease. The cruel reality is that cancer alone kills more than two thousand kids each year in the United States, and thousands of others succumb to chronic genetic disorders, such as cystic fibrosis, or perish in ICU beds after sustaining irreversible trauma. These are real children--not hypothetical entities injured for the intellectual benefit of philosophers and theologians. Some opponents of pediatric aid-in-dying argue that legalizing the hastening of death will open the door to exploitation and that a horde of nefarious parents will use this opportunity to rid themselves of burdensome offspring. Strong evidence casts doubt upon these claims, as those jurisdictions that have legalized aid-in-dying for adults have not seen any such abuse of the elderly or disabled. Similarly, if the fear is that insurance companies and corporate hospitals will pressure families into terminating care prematurely--which they are just as likely to do in a world governed by the willful self-deception of "double effect"--then the proper solution is to curtail the power of hospital and health insurers, not to force unwanted life of minimal quantity on our most vulnerable citizens.
Granting parents the right to hasten the deaths of their dying children certainly does not prevent either physicians or the courts from intervening in the unlikely event that a caregiver appears to be guided by base and ulterior motives. What establishing such a right does ensure is that children and parents will have one more weapon in their arsenal when confronting the tragedy of fatal illness. If I had a young child who had no prospect of regaining consciousness, I would want her existence ended as quickly and painlessly as possible. That is not to suggest that other reasonable people might choose differently. Up to the point that the public welfare is gravely compromised, those families who wish to keep comatose children alive should certainly be permitted to do so. In matters of child dying, as in child rearing, an enlightened society should be willing to say that parents know best.]]>Pope vs. Doctors: How New Vatican Orthodoxy Undermines Medical Ethics and Imperils Your Healthtag:www.huffingtonpost.com,2010:/theblog//3.4574872010-02-10T17:31:05-05:002011-05-25T15:30:22-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The first of these disturbing Church salvos against mainstream medical ethics is to be found in the newly promulgated Directive 58 of the United States bishops' body governing Catholic health care services. This edict states that, barring certain specific circumstances, such as imminent death, Church doctrine prevents competent patients from refusing artificial nutrition and hydration. William Grogan, a religious advisor to Cardinal Francis George of Chicago, explained to the media that death would have to be expected within two weeks for a patient to turn down a feeding tube. In other words, according to current Catholic teaching, a cancer patient in a coma with a life expectancy of four weeks must now be force-fed--no matter what his prior instructions stated and without regard to his family's wishes. All comatose and vegetative patients will be required to accept nutrition and hydration indefinitely, even if they leave behind air-tight living wills objecting to such "heroic" and invasive measures. This extreme policy apparently applies to all patients receiving care in Catholic-run hospitals, whether or not they are Catholic. Since United States courts have consistently accepted that mentally-competent patients have a right to refuse care if their wishes are clear and documented, these rules may well be illegal. However, even if Directive 58 is not a violation of the law, it is a gross breach of accepted standards of medical ethics. No doctor or nurse in the United States may provide such unwanted nutrition and hydration without defying a well-established code of professional conduct. It is likely that any provider who acted in this paternalistic and unequivocally immoral manner would lose his or her license. In the very least, the provider would become a pariah among his colleagues.
A second Church-instigated challenge to medical ethics has arisen as a result of a grass roots protest by anti-abortion organizations in Pennsylvania against the well-regarded St. Mary's Medical Center of Langhorne. In this case, Dr. Stephen Smith of St. Mary's performed an ultrasound on an expecting mother and confirmed that the fetus had polycystic kidney disease, a fatal condition in infants. Smith recommended an abortion. When the pregnant women sought a second opinion, a midwife at Mother Bachman Maternity Center in nearby Bensalem, operated by the St. Mary's, also recommended termination. The mother refused, which was certainly her prerogative, and the infant died two hours after birth. When local abortion opponents publicized Smith's advice, a private citizen named Joseph Trevington demanded a formal review of St. Mary's by the local archdiocese. The results of this ethics investigation are not yet publicly known, and may never be revealed, although a diocese spokesman stated that changes in the hospital policies are to be expected.
The very decision to conduct such a moral audit displays a chilling new direction in Church practice. As a matter of doctrine, Catholic hospitals require employees to "respect and uphold the religious mission" of their institutions as "a condition for medical privileges and employment." So, in theory, any physician endorsing abortion (or vasectomies, birth control, withdrawal of life support, etc.) while on the hospital premises should be relieved of his duties. As a matter of Catholic doctrine, Trevington and his anti-abortion brethren appear to have the better half of the theological argument, at least when it comes to consistency and the letter of the law. At the same time, allowing Church dogma to dictate the medical practices of physicians clearly violates the most basic tenets of healthcare ethics. Dr. Smith had a duty to offer advice to his patient based upon his best independent professional judgment--which he apparently did. The Hobson's choice that he faced--either to follow the Catholic "law" enshrined as policy or to adhere to medical obligation--was unreasonable and unacceptable.
Both of these events expose the dark and unspoken (although widely understood) secret that enables Catholic hospitals to practice first-class medicine: Official Church policy on matters such as contraception and end-of-life care, like much Catholic doctrine more generally, is largely honored only in the breach. I have known many excellent physicians over the years, both religious and secular, who work at Church-run hospitals. All of them advise women taking medications that cause birth defects to use contraception and tell HIV-infected patients to use condoms. Many offer direct counseling on abortion, certainly when fetal prognosis is grim. I cannot imagine any of these gifted doctors would force-feed an unwilling cancer patient in violation of an advance directive or a health care proxy's wishes. Much like the absurd loyalty oath that New York's college professors--myself included--take to uphold the state's constitution, any pledge to support Catholic doctrine on medical matters is broadly viewed as a formality to be agreed to and then summarily ignored. Historically, the Church has looked the other way. Now, by challenging this longstanding system of benign neglect, bishops and grass roots zealots may believe they will achieve ideological purity. What they are actually doing is jeopardizing both the welfare of Catholic hospitals and the public health.
Some concrete thinkers may argue that since Catholic hospitals are "private" institutions, the Vatican can impose any rules that it wants. The claim belies the inherently public nature of the American hospital system. Catholic hospitals--like virtually all other hospitals in the Unites States--are only able to function as a result of a swath of government handouts and subsidies. Medicare and Medicaid pay the bills of almost half their patients. Federal funding supports the salaries of their medical residents. NIH Grants sponsor their research and clinical care. Many of the hospital buildings themselves were erected will federal construction dollars providing by the Hill-Burton Act of 1946. Private businesses may have a claim to considerable leeway in formulating their own rules and policies--although even "mom & pop" stores are reasonably prevented from excluding African-American customers and are often required to accommodate disabled shoppers. In theological matters, the Pope is certainly free to issue any decree he likes and those who wish to follow his dictates are entitled to do so. In contrast, Catholic hospitals function as public entities that serve people of all faiths and traditions. A patient in a medical emergency is taken by ambulance to the nearest hospital, not the nearest hospital that shares his social values. A system that operated otherwise would lead to logistical chaos and increased mortality. Once one accepts the premise that Catholic hospitals are public institutions, they have a moral obligation to comply with generally accepted standards of patient care and professional ethics. Today's hospitals are far more Caesar's than they are God's.
One of the greatest triumphs of modern health care in the United States is the rise of nonsectarian service. In an earlier era in New York City, for example, Jews sought care at Mount Sinai while Protestants preferred Presbyterian Hospital and Catholics chose St. Vincent's. Now, most patients--and all wise ones--choose their health care providers for clinical skills and personal attributes, not religious labels. As a result, the majority of patients at Catholic hospitals are not Catholic. To impose orthodox Catholic doctrine on these non-Catholic individuals at the most vulnerable moments of their lives would be the most significant Church intervention in the lives of non-adherents since the Inquisition. Doing so would also threaten the ability of physicians to practice at Catholic hospitals without violating their professional codes of ethics. In light of these developments, any patient currently receiving care in a Catholic-run hospital should immediately clarify with her doctor whether this physician will follow the patient's own end-of-life wishes regarding so-called heroic measures if they come into conflict with Directive 58.
The Catholic Church has every right to announce and publicize its views on certain medical interventions and to declare that Catholics who engage in certain conduct are violating the rules of the Church. It's the Pope's club. He can make the by-laws. He does not have any business imposing such rules on third parties who do not wish to follow them. It will be a sorry day if American patients seeking the best medical care are forced to avoid Catholic hospitals for fear of having their living wills ignored or their doctors' counsel dictated from Rome. The Church would be wise to focus its energies on theology and to leave the practice of medicine to the professionals. ]]>Medical Kidnapping: Rogue Obstetricians vs. Pregnant Womentag:www.huffingtonpost.com,2010:/theblog//3.4344972010-01-24T03:30:23-05:002011-11-17T09:02:45-05:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/
The facts as reported are strikingly straightforward. Burton, a married mother of two toddlers, contacted her obstetrician in March 2009 -- during her twenty-fifth week of pregnancy -- when she became concerned that she might be going into premature labor. The obstetrician advised her to report to Tallahassee Memorial Hospital. While at the hospital, it became apparent that Burton was not going into labor. However, Dr. Bures-Forsthoefel recommended up to fifteen weeks of bedrest for her patient. When Burton explained that she had two children at home and a job, and that full bed rest was not a viable option for her, Bures-Forsthoefel ordered her confined to a hospital room to protect the health of her fetus. The hospital and Bures-Forsthoefel then obtained an order from the Circuit Court of Leon County that mandated Burton remain in bed for the duration of her pregnancy (eg. up to fifteen weeks) and to undergo "all medical treatments" that her physicians believed were in the fetal interest. Burton was denied any opportunity to obtain a second opinion at another hospital. She was effectively held prisoner in her room for three days, at which point an emergency C-section revealed a dead fetus.
Burton and the Florida ACLU are now appealing the Circuit Court's decision to Tallahassee's First District Court of Appeals, where oral arguments were heard last week, in the hope that future patients will not have to endure such mistreatment. Likely, she will prevail on Constitutional grounds -- although this case may work its way through the state and federal appeals courts before such a victory. Whatever the legal results of that case, the implications for medical ethics should not be given short shrift. Once Burton expressed her wish to decline further care and to exit the hospital, her physicians had an ethical duty to explain to her the risks of refusing treatment -- and to let her depart immediately. If Dr. Bures-Forsthoefel did knowingly force unwanted medical care upon a mentally-capable patient -- and there is no evidence that Burton was anything less than sane and rational when she expressed a desire to leave the hospital -- then doing so was a gross violation of the most basic tenets of her profession. Obtaining a court order may grant a physician a legal right to engage in certain conduct. It does not follow that such conduct meets the ethical standards of the medical community or that it is beyond formal censure. Both state medical authorities and national professional governing bodies, such as American College of Obstetricians and Gynecologists, have a duty to investigate this alleged breach of ethical norms.
One of the most essential principles of modern medical care -- possibly the fundamental underpinning -- is that competent patients have the right to make their own medical decisions. Pregnant women have as much authority to control their course of care as does anybody else. Philosophers and political activists can argue ad nauseam as to the precise moment when an embryo, fetus or baby achieves full personhood, but as long as this entity is physically part of the mother, longstanding medical practice is that its medical welfare is under the control of -- and subordinate to -- her wishes.
Our society may discourage pregnant women from drinking alcohol or smoking tobacco, but we do not jail them for doing so. Some future mothers may defer necessary medical care, such as chemotherapy, in order to bring pregnancies to term, but none are compelled to risk or sacrifice their lives in this manner. Moreover, women at their twenty-fifth week of pregnancy can choose termination legally in at least ten American states and Canada. While views on abortion may differ widely, nobody -- even those most strongly opposed to abortion -- argue that all pregnant women should be prohibited from traveling to those jurisdictions because opportunities for termination might then be available to them. By holding Samantha Burton a de facto prisoner, as alleged, Dr. Bures-Forsthoefel and Tallahassee Memorial Hospital effectively imposed their own moral values upon a relatively helpless patient at the moment when she was most vulnerable. The prospect of fifteen weeks' confinement -- and its consequences, such as the possible loss of one's job -- should not be viewed as anything less than horrific. When imposed by the same caregivers whom one has called upon for medical assistance, this trauma must surely be magnified. Preventing a competent pregnant woman from leaving the hospital under these circumstances is no less egregious than compelling her to have an abortion. Forcing additional intrusive care upon her, such as unwanted vaginal exams or cervical assessments, is legally-sanctioned digital rape.
As outrageous as was Burton's confinement, the damage done in this case transcends the particular horrors suffered by one patient. In order for prenatal care to be delivered effectively, pregnant women must be able to trust their physicians. Needless to say, if these allegations are indeed true, no sane mother or couple would ever choose Dr. Jana Bures-Forsthoefel to deliver a child. Nor would any rational woman seek obstetric care at Tallahassee Memorial Hospital--knowing that, if she wished to pursue a second opinion elsewhere, the hospital's attorneys might seek to lock her up. However, the very prospect of such involuntary confinement may well deter other women, both in Florida and elsewhere, from seeking necessary prenatal care. This danger is especially true with regard to poor and minority women who often already have reasons to distrust the medical profession.
Women who fear that they will be coerced into unwanted care will not seek any care at all -- and the inevitable result will be miscarriages, premature births, sick children and even maternal mortality. That is the greater, invisible tragedy in this case: Some expecting mother, somewhere, fearing fifteen weeks of unwanted hospitalization and forced bed rest, may die indirectly as a result of the aggressive and unwarranted actions of Dr. Bures-Forsthoefel and the Tallahassee Memorial Hospital's legal team, although nobody will actually trace that unfortunate woman's death to their doorstep.
Dr. Bures-Forsthoefel should be given an opportunity to explain her actions. If the allegations against her are true, she should immediately apologize, acknowledge her misconduct and have her license suspended for a reasonable period of time. Mrs. Burton is certainly entitled to an apology -- and appropriate compensation. At the same time, physicians are as capable as anyone else of grave lapses in judgment. If they acknowledge their mistakes, they ought to be forgiven. However, if Dr. Bures-Forsthoefel refuses to apologize and explain, and instead seeks to defend her conduct in court, she should have her license permanently revoked. The medical community has an obligation to police the actions of its members. One may argue for disciplinary restraint in gray areas, as one does not want to interfere unduly with the judgment of individual providers. This is not remotely such a case. Every third-year medical student knows that forcing unwanted care upon patients -- pregnant or not -- is fundamentally unacceptable.
Pregnant women and those planning pregnancies should also take away a lesson from the Samantha Burton tragedy. Ask your obstetrician directly: Is there any circumstance under which you will refuse to let me make my own medical decisions or will prevent me from leaving the hospital? That is a question no woman should ever have to ask her doctor. Unfortunately, as long as rogue OBGYNs continue to impose their values upon unsuspecting patients, it is a prudent question to ask.
]]>Doubling Down on Baby M: New Jersey's Ongoing Resistance to Surrogacytag:www.huffingtonpost.com,2010:/theblog//3.4099922010-01-03T22:54:43-05:002011-05-25T15:05:19-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/Baby M decision of 1988, which effectively outlawed surrogate motherhood in that state. Ruling In The Matter of Baby M, the New Jersey Supreme Court found that surrogacy contracts -- such as the one Mary Beth Whitehead had entered into with William and Elizabeth Stern -- violated public policy and would not be legally enforced. In that instance, Ms. Whitehead had been artificially inseminated with Mr. Stern's sperm after contracting to surrender the infant at birth for $10,000, but later reneged on her agreement. In light of the high court's unfortunate judgment, New Jersey couples arranging surrogate births have ever since been forced to seek carriers in other jurisdictions. In 2005, however, accountant Donald R. Hollingsworth and his husband entered a distinctly different agreement with Hollingsworth's sister, Angelia Robinson, in which she agreed to serve as a gestational carrier for progeny -- twin girls, born in 2006 -- conceived with Hollingsworth's sperm and an egg provided by a third-party donor. So while "Baby M" was technically Whitehead's genetic offspring, Robinson merely gestated the twins and contributed nothing to their genetic makeup. Judge Francis Schulz could have used this distinction to undo some of the damage rendered by the Baby M verdict. Instead, he chose to see the cases as largely indistinguishable. His ruling against the Hollingsworths stands as a major setback for gestational surrogacy and artificial reproduction. If it is allowed to remain law, it threatens parental opportunities for gay couples and, as significantly, undermines the reproductive autonomy of women.
The premise underlying the New Jersey Supreme Court's ruling in Baby M is that surrogacy contracts have the potential to exploit women. Chief Justice Robert Wilentz acknowledged that often "surrogacy may bring satisfaction, not only to the infertile couple, but to the surrogate mother herself" and that "many women may not perceive surrogacy negatively but rather see it as an opportunity," but he nonetheless emphasized that legalized surrogacy might result in the "potential degradation of some women." Surrogates, the court suggested, might second-guess themselves. Or act under the duress of economic need. In short, the fact that Whitehead consented to use her body as a surrogate was entirely irrelevant, because there are some acts to which nobody is permitted to consent. As well-meaning as this approach to the matter might have been, its underpinnings are inescapably sexist. (One cannot help recalling Justice Brewer's equally well-intentioned yet deeply-misguided opinion in Muller v. Oregon, through which the United States Supreme Court upheld a maximum work-hours statute that applied only to females.) There are few occupations in the world for which either gender is uniquely qualified, yet, at least with our present technological limitations, serving as a surrogate fetal carrier is one of them. One of the only others is serving as a sperm donor -- and, while sperm donation may be controversial as it pertains to offspring, one never hears legislators or courts worried that male donors will be "degraded" by the process. The double-standard is apparent. If men could serve as surrogates, I suspect they would be admired as entrepreneurs.
Obviously, no woman should ever be forced into serving as a surrogate. At the same time, what business does the state have in denying all women such a promising economic opportunity because, in theory, some potential surrogates may regret their choices? For many women, the income generated through surrogacy could mean a college education, or a down-payment on a home, or a chance to start a new business. Or, if done altruistically, the act might result in a deep sense of personal satisfaction gained from helping infertile or same-sex couples -- a gratification akin to that enjoyed by kidney donors.
I am not arguing that all women would make that choice. Or even that it is a wise one. However, unlike New Jersey, I have enough faith in women to let them decide the question for themselves. If autonomy is good for the gander, it is assuredly good for the goose too. That is not to say that corollary ethical concerns won't result. The most challenging moral dilemma relating to surrogacy, which has yet to arise, is whether a woman might contract away her abortion rights when carrying a genetic embryo belonging to another couple, particularly if that couple possesses only a limited number of embryos to implant. That sort of "no termination" contract -- which does approach involuntary servitude -- might indeed violate public policy. In contrast, a surrogacy contract that provides a loving couple with a wanted infant and a mother with economic compensation seems like a collective good. If the state's concern is economic exploitation, the solution would be setting a minimum price for those arrangements that involve any compensation at all.
Some opponents of surrogacy focus not on the degradation of the mother, but upon the potential harm that theoretically may befall the offspring. However, there's no reason to believe that surrogate babies will be any worse off than other children -- and several good reasons to think that they will end up better off. The very fact that an individual or couple is willing to go to such great lengths to obtain a baby suggests that the infant has a greater likelihood of entering a loving family. Far preferable to be the product of surrogacy than the spawn of a couple who does not want a child, but lacks the common sense or decency to use birth control. Some critics may argue that offspring will be harmed by knowing that they were gestated for cash -- but whatever that theoretical harm might be is surely balanced out by the knowledge that their parents wanted them so much that they were willing to pay for them. Moreover, the existing evidence from the Baby M case is that Melissa Stern, who was raised by William and Elizabeth, turned out to be a fine young woman who loves her real family very deeply and severed Ms. Whitehead's parental rights at the first legal opportunity.
The sad truth is that many of those who oppose surrogacy are hostile to all forms of artificial reproduction and to non-traditional families more generally. Other critics allow their sympathy for women like Ms. Whitehead and Ms. Robinson -- the proverbial "greasy wheels" who have second-guessed themselves -- to distract their attention from the thousands of women and families who have benefited from such arrangements. Alas, making poor personal choices is not the same thing as being exploited.
The American Bar Association has been working to standardize state surrogacy laws across the country, action that is long overdue. Children need certainty in their familial relationships and couples need protection from disgruntled surrogates who might seek to use varying state laws to disrupt that certainty. One such glaring and horrific betrayal was recently reported in the New York Times: A Michigan woman named Laschell Baker allegedly advertised to serve as a gestational surrogate for a "Christian couple" and gave birth to twins, Ethan and Bridget, for the childless Amy and Scott Keloe, who had provided the fertilized egg and had paid a small fortune for the implantation. Later, when Baker discovered that Amy Keloe had a history of prior treatment for mental illness, she took perverse shelter in Michigan's lack of a surrogacy statute to demand the children's return. Beyond the glaringly disturbing aspects of this particular case -- the overt bigotry against non-Christians and the mentally-ill -- the tragedy makes clear that, without strong legal protections, families formed via the services of gestational carriers remain precariously at the mercy of those surrogates' whims and prejudices. Moreover, if states to do not embrace surrogacy and clarify their laws, it is only a matter of time before much of the surrogacy trade shifts to India, where a gestational carrier market already thrives, outsourcing yet another promising economic opportunity for women.
Judge Schultz attempted to frame his ruling against the Hollingsworths as unavoidable, but the truth is that he had multiple legal paths to avoiding the Baby M precedent. He might have placed greater weight on the fact that, unlike Mary Beth Whitehead, Robinson has no genetic connection to the children. She is less like a genuine parent and more like a relative who generously agrees to look after a child for nine months, and then declares that, as a result of that supervision, the child belongs to her -- the only difference here being that a fetus, rather than an actual child, was in her care. After noting that distinction, Schultz could have relied upon the substantial pro-surrogacy case law in other states that has evolved since 1988, most notably the California Supreme Court's far more compelling Johnson v. Calvert decision, to guide his reasoning toward a verdict upholding the contract. Or he might even have indirectly "overturned" Baby M in all but name by ruling that, because the appealing surrogate was acting in violation of her contract and hence proceeding in bad faith, placing the baby in the hands of the other party was always and inherently in the best interests of the child, the standard preferred by the Baby M court. Judge Schultz, of course, is certainly entitled to his opinion -- which, in this case, counts for much more than mine. But nobody should be fooled into believing the outcome of this case to have been inevitable or predetermined as a matter of law.
New Jersey was once a pioneer in the rights of women. Its post-Revolutionary Constitution granted women the right to vote from 1776 until 1807 -- making it the last nineteenth century holdout against those opposed to women's suffrage. How discouraging if the state were now to become known as the final holdout against reproductive contract rights for women. The time has come for the solons of Trenton to intervene.
]]>Embracing Teenage Sexuality: Let's Rethink the Age of Consenttag:www.huffingtonpost.com,2010:/theblog//3.4091362010-01-01T17:45:54-05:002011-05-25T15:05:19-04:00Jacob M. Appelhttp://www.huffingtonpost.com/jacob-m-appel/Gone With the Wind, 16-year-old Scarlett O'Hara fends off flirtatious propositions from the 19-year-old Tarleton twins -- a moment rendered indelible in the subsequent film by the gifted actors Fred Crane and George Reeves. I suspect few of the countless high school students who read this novel each year reflect on the morality of the age difference between Scarlett and her suitors. The stark reality is that a consensual sexual relationship between a 16-year-old and a 19-year-old is a prison offense in many states, including New York and California. New York State goes even further: Two 16-year-olds enjoying a voluntary sexual relationship are legally committing crimes against each other, with both partners being "victims" and possibly even sex offenders. These draconian and puritanical laws are largely the product of a conservative political culture that has transformed the fight against child molestation into a full-blown war on teenage sexuality. We now live in a moral milieu so toxic and muddled that we lump together as "sex offenders" teenagers who send nude photos to each other with clergymen who rape toddlers. A first step toward reversing this madness -- and actually protecting the health and safety of teenagers -- would be to revise the age of consent downward to a threshold in accordance with those of other enlightened nations.
The widespread decriminalization of homosexual intercourse over the past two decades has led many Western nations to reexamine "age of consent" statutes for both same-sex and opposite-sex couples. Great Britain, after considerable national debate, chose 16 at its magic number in 2003, although a minority of liberal Britons, led by gay rights activist Peter Tatchell, continue to push for a cut-off at 14 years. In 2008, Canada has also settled upon 16. French law sets the age of majority, in matters of romance, at 15. Our other closest cultural and moral allies fall into a similar range: Belgium (16), Denmark (15), Germany (14-16), Greece (15), Holland (16), Italy (14), Norway (16) and Sweden (15). The outliers are even lower, not higher, such as Spain's threshold of 13. What these nations have accepted, and many in this country still refuse to acknowledge, is that teenagers do have sex -- lots of it -- and that criminal law is neither an effective or an ethical means of deterring their sexual desires. (The average age of first sexual intercourse remains well below 18 in the United States, including in those states with an 18-year-old age floor, suggesting that a majority of teens violate these laws with impunity.) Furthermore, when it comes to older teens, it is not at all clear why safe sexual relationships should be deterred. If a 16-year-old can enjoy sex responsibly -- using birth control, taking measures to prevent the spread of disease -- and he or she wishes to add sexual pleasure to the rich tapestry of adolescent life, why shouldn't we encourage that individual to do so? It seems a far less dangerous endeavor than hunting, which New York licenses at the age of 12 (versus 17 for intercourse) and California allows at 16 (versus 18 for sex). Driving, too, is far more dangerous than sex. Whether the age of consent should be 16 or 15, or even a year younger, is a complex question that our society needs to address. Keeping the age of consent at 18, as do 12 states, is no more reasonable that setting it at 10.
The purpose of "age of consent" statues is presumably to prevent the exploitation of children who are not yet mature enough to make wise decisions or who do not understand the implications and consequences of sex. (Of course, one could apply that same reasoning to many other potentially-corrupting activities -- attending church or synagogue, for example. Yet nobody argues we should shield children from religion until they reach 18 and are thus old enough to understand the implications and consequences of religious practice.) Another justification for age-of-consent laws is that the sort of adults who prey upon young children sexually are also likely to harm them in other ways, including violently -- to cover up their deeds, if for no other reason. These concerns for the safety and welfare of minors justify legal regulation, but only up to a point. A college freshman who asks a high school junior on a date poses little threat to the commonweal -- even if that date ends in bed. Statutes criminalizing such behavior are far more likely to harm teenagers than to help them -- whether by denying them access to necessary information, deterring them from sharing their experiences with teachers and counselors for fear that they or their partners will be reported to authorities, or driving them to have sex in parked cars and dark alleys rather than safe, warm bedrooms. In fact, in many states the responsible and sexuality-aware parent who creates a safe environment for a teenager to explore his or her sexuality with peers can face prosecution and even loss of custody for contributing to the corruption of a minor.
The Christian right and its political allies have similarly co-opted efforts to crack down on child pornography as part of their drive to suppress teenage sexuality. Child pornography statues, which were initially designed to prevent predators from exploiting children, are now increasingly being used to prosecute or intimidate teenagers who receive sexually explicit photos of their boyfriends or girlfriends. Some of these teens have even been charged under child pornography statues themselves -- including a 17-year-old Ohio girl who was prosecuted for "sexting" her own partially-clad photograph to an ex-boyfriend who was over 18. The problem is not with these teenagers. The problem is with the statutes. While sexual images of 16- and 17 year olds may of course be used inappropriately -- as may those of adults, for that matter -- the individuals who should be punished are those offenders who misuse these images, not the teenagers who take them or the romantic partners who savor them. Exploitation is wrong. Neither sex nor nudity are inherently wrong or inherently exploitative. Alas, we appear to have forgotten how to tell the difference.
The media all too often focuses on cases where sexual relations are non-consensual (such as Roman Polanski's encounter with Samantha Geimer) or where authority figures, such as teachers and coaches, seduced young charges in their care. But many teenagers are prosecuted for consensual encounters with their peers or partners only a few years younger than themselves. Some of these cases prove truly Kafkaesque. In Florida, for example, a 15-year-old girl recently had consensual sex with four 17-year-old football players -- and then, by her own admission, allegedly fabricated rape charges against them. The boys, who are the actual victims in this case, now await trial on charges of "lewd and lascivious battery of a minor," a serious felony. In Georgia, the widely-publicized tragedy of 17-year-old Genarlow Wilson -- sentenced to 10 years in prison for consensual oral sex with a 15-year-old girl -- nearly ruined the life of a promising young man without in any way protecting the welfare of other teens. These are merely the tip of the forensic iceberg. On a regular basis, morally blameless young adults are prosecuted, forced to register as sex offenders, and even deported for consensual sex-acts with 16- and 17-year olds that would be legal in Canada and often in neighboring states. What is a loving relationship in Newark or Las Vegas is the worst of all crimes in New York City and Los Angeles.
Teenagers are smart. They understand that sex can be pleasurable and that it can enhance the intimacy of their relationships. Telling them otherwise -- by insisting, for example, that "sex is for adults only" -- defies their lived reality. We should instead be emphasizing safe sex practices, open communication, and gender equality. We should not tolerate, for example, any double standard that winks at teenage boys for having multiple partners but disparages girls who do so. We should take a warning from the old joke: What do you call teenagers who receive abstinence-only sex education? Anwers: Mothers and fathers. I look forward to the day when those adults who preach an anti-sex philosophy to teenagers become as unpopular as the teens who embrace it.
That is not to say that some teenagers won't choose to remain celibate. I cannot imagine why they would, by I respect their right to do so. However, those 16- and 17-year-olds who want to indulge in one of life's great pleasures should not have to worry about the long arm of the law coming after them or their partners. Even more important, our society needs an open debate on this question. For far too long, those progressive voices who would bring common sense to the issues of teenage sexuality have been afraid to speak out for fear of being branded sympathetic to pedophiles and sex predators. The reality is that a reasonably lower age of consent, and a frank national discussion of adolescent sexuality, would serve the interests of the very minors that current laws are supposedly trying to protect. Pro-sex is Pro-safety. Conservative parents are certainly entitled to encourage their teenage daughters to keep their legs crossed, much as they may tell their sons that masturbation causes blindness. What they do not have have a right to do is to lock the rest of our society in a chastity belt by fighting a war on sexuality under the specious guise of protecting teens from themselves.]]>