Taboo Trades
Taboo Trades
Reproductive Markets with Kimberly Mutcherson
Kim and I, together with co-host (UVA 3L) Thalia Stanberry, discuss surrogacy, the right (or not) to procreate, and CRISPR
Kimberly Mutcherson is the Co-Dean and a Professor of Law at Rutgers Law School in Camden. Her scholarship focuses on reproductive justice, bioethics, and family and health law.
Further reading:
(1) Kimberly Mutcherson, Reproductive Rights without Resources or Recourse (Hastings Center Report, fall 2018).
(2) Kimberly Mutcherson, Building Queer Families and the Ethics of Gestational Surrogacy (University of Richmond Law Rev, 2019).
(3) Sandy Sufian and Rosemarie Garland-Thomson, The Dark Side of CRISPR, Scientific American, Feb. 16, 2021
Thank you so much for doing this. Oh, it's a huge, huge pleasure. I don't get enough opportunities to talk about these issues anymore.
SPEAKER_06:Because you're a damn dean, that's why. Mistakes were made. Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. My guest today is Kimberly Mutcherson. She's the co-dean and a professor of law at Rutgers Law School in Camden. She's also an insightful and productive scholar whose work focuses on reproductive justice, bioethics, and family and health law. She's always interesting and provocative, and I'm thrilled that she could take time out of her busy schedule to talk with us today. So first, welcome, Kim. And thanks for being with us, especially given your very busy schedule, since for some crazy reason, you've decided to become a dean. And that could be a whole different podcast. But I'm grateful to you for doing the work. But I also recognize how much of your time it must be taking. And so I'm really happy to do this. You and I have known each other for a long time and used to see each other more regularly. I know. And that has been put on pause forever. variety of reasons. But so I'm really happy to have this opportunity to see you again and introduce you to my wonderful students here at UVA.
SPEAKER_05:Great. I'm looking forward to it.
SPEAKER_06:One of the topics that you write about is surrogacy and you have a really nice article and you have several articles on this, but one of the ones that I thought was really nice was this Richmond Law Review article on building queer families and the ethics of gestational surrogacy. And in this piece, one of the things you argue is that consumer, and correct me if you dislike the way in which I'm framed the article in any way, Kim. So one of the arguments that I take from it anyway is that consumers of surrogacy services have an ethical obligation to only do business with agencies that treat surrogates ethically. And one question we had as a group is really whether you believe that there's a greater burden for ethical consumerism of surrogacy as compared to other products and services, or whether you view this as more just being sort of on par or a subset of a more general obligation that consumers arguably have to purchase ethically in a global marketplace. And so if you do think the burden is greater for surrogacy services, then we would like to talk about why.
SPEAKER_05:Sure. So as a starting point, let me just say that I work really hard to never reread my own writing, right? Like after it's published, I'm just done with it. I do the
SPEAKER_06:same thing. In fact, it's painful to reread. Yes,
SPEAKER_05:yes. But I did it for purposes of this discussion. So, I mean, one thing that I do want to say, and I don't know that this is necessarily a corrective for how you described it, but I My position is that people should do their best in terms of trying to work with an agency that is treating the women who work for them with certain levels of respect, with an understanding that that's not always going to be possible for a whole range of reasons, but there's something to be said for having a starting point. And so that's my starting point, that you should try your best to do it the right way. The more specific question about whether I think this obligation is different, I would say that I think it's different whenever we're talking about how people's bodies are potentially being exploited, right? So if somebody here is a vegan and has lots of issues about how animals are treated, totally respect that. But my thought process is really about this wild, wild industry that we have that involves people making other people. That's just a super unique industry. And we've allowed it to become this commercial behemoth, right? Millions, if not billions of dollars are being traded. And in that sort of context, I do think that the people who are consumers in that market have a high ethical obligation, right? In the same way as if you think about controversies in international adoption, where real questions started to get raised in particular countries about how these kids were coming into the adoption market, what was the consent process like, all of those sorts of questions. And I would certainly say for people in that, and I'm gonna use the word market, Right. You know, I would say we approve, you know, to people in the international adoption market. Right. That you should make some effort to be clear that, you know, these aren't kids who are being stolen from their birth parents in order to be traded across across international lines. So.
SPEAKER_06:Okay, great. So I am going to come back to that because I have a couple of follow-ups about that, but I'll let Talia introduce herself and then Talia has a couple of questions and I'm going to let her ask her questions and then we'll come back to this. So Talia, go ahead.
SPEAKER_09:First, thank you for being here. My name is Talia Stanberry. I'm a 3L here at UVA. I do have a sort of follow-up question to what you were just describing. So in your paper, you mentioned the gay community as consumers of this product or people participating in this type of transaction. I was wondering if you believe that there's a greater burden on marginalized communities like the LGBT community to ensure that surrogates are being treated equitably. And if so, why do you think that is?
SPEAKER_05:Yeah, I mean, I don't think that there is a greater ethical obligation. I do think that there are... sort of interesting ways in which those of us who ourselves are from marginalized communities often think about how we interact with potentially problematic practices. And I don't think that that's a bad thing, right? As a Black woman, when I think about, for instance, how people access reproductive health services in this country, I think about how racism and sexism and all these other things have impacted what that looks like, right? And I don't think that that's a bad thing. So it's not necessarily that I think that you that that folks who are members of the queer community community have some sort of higher burden. But I do think that we often walk into these situations with a heightened sense of how problematic some of these relationships should be,
SPEAKER_06:could be. Talia, you also had a question about compensation. Do you want to ask that?
SPEAKER_09:Yeah, sure. So this is sort of changing the trajectory a little bit. But in your paper, you also mentioned that American surrogates are paid more compared to surrogates in India. But you also note that the compensation for a rural Indian woman is roughly 10 years worth of wages. So in relative terms, that would mean that the Indian surrogate probably earns more after adjusting to for a cost of living than the American one does. What metric should we be using to judge whether payment practices are ethical in international surrogacy contracts?
SPEAKER_05:So one thing that I should say, I wrote this piece a while ago, and even at that point, India had really started to shut its doors to foreigners. And so one of the things that has happened in the world of international surrogacy is, there's a country that opens up, people get super excited and they start going there and making their babies there. The country realizes that this practice is happening and starts to get really upset about it. And then they shut their borders. So what has happened as India closed is people moved to Nepal and they moved to Cambodia. And then as those countries started to close, then they moved to parts of Mexico. And then as Mexico started to close, then they moved to Eastern Europe. And so one thing that I think is is really important to recognize in this industry is that it thrives on need and desperation sometimes, right? And that there's a reason why they continually will jump to developing countries and that they won't necessarily focus on how do we build up surrogacy in Europe or how do we build up surrogacy in the US, right? That there is a clear... benefit to going to places where women don't have a lot of other options, right? And I think it's important to recognize that that's what's going on here. So the question of compensation is one of the more difficult ones in the context of surrogacy. And I said this in the paper, but I'll say it here as well. Surrogacy is incredibly unpopular on a global scale, right? It is one of the most banned forms of assisted reproduction. People have a lot of concerns about how this works and it looks like baby selling, right? All these sorts of things. And a large part of that is because we are exchanging money for a child. And we can have the, you know, argument about actually it's the service, blah, blah, blah, blah, blah. But at the end of the day, nobody's paying for somebody else to be pregnant just so they can watch that person be pregnant, right? You're paying for that person to then hand a child to you at the end. And that is an incredibly valuable thing service, right, to provide to someone else that also has enormous risks associated with it, both emotional risks and physical risks, right? Let us not forget that women around this world and in this country die on a regular basis because of pregnancy or because of childbirth. So in that sense, I think we need to be thinking of compensation with a recognition of how significant the work is that's being done here. And it is work, right? It's a form of reproductive labor. And so I think that we want to... think really critically about how do we price something like this? And it's almost impossible to price it, right? It's 24-7 for nine months, and you don't quite know what's going to come out of it. So I don't have a particular formula that I would say we should use, but I certainly think that the numbers that we're using, frankly, even in the United States, are far lower than are probably appropriate, given the kind of work and the risks that are associated associated with that work that people are providing. The issue
SPEAKER_06:about- If it's too low, it's exploitative. If it's too high, it's coercive. And so there must be, if I wave my magic wand, this fairy tale perfect amount. And we from on high, right, the benevolent dictators need to figure that out. And I guess... I don't see any evidence to suggest that the market isn't better at deciding this and that if countries like India and Thailand and some of the Eastern European countries that are becoming centers for this want to, rather than banning surrogacy, could implement safety protocols, could implement minimum wages, could standardize. There's so many things they could do to improve surrogacy, including where payment is concerned, but both the data and the behavior of most of these surrogates suggest that they think that this is not just an adequate, but a good compensation level compared to their alternatives, even when considering the risks. And let's bear in mind that for poor people in India, like risk is just on a whole nother level in their lives than what, you know? And so I guess I just wanted to press you a little bit on that because this feels very sort of, there is a just right amounts, you know, a Goldilocks sort of theory of compensation.
SPEAKER_05:Yeah. I mean, so I don't think that there is a just right amount and certainly not one that I would be willing to put a number on the table and say, this is where we are. Right. In part, because there are so many different pieces. There's a geographic piece. There's the, you know, if you're younger, it's more valuable. If you have had previous surrogacies, you're considered to be more valuable. If you're willing to carry multiples, you're considered to be more valuable. Right. But
SPEAKER_06:is there any reason to think that that's the case? I mean, that's all being priced in already. I mean, I guess my question is just what makes us think we can improve on that?
SPEAKER_05:Right. Well, I mean, I guess for me, you know, when I think about how we price within this market, I really focus on the ways in which women's work frequently gets undervalued. And not just this work, all women's work. women could be compensated for selling their eggs, right? Which I guess
SPEAKER_06:is why I push back against thinking that we, you know, right, the big tent, we policymakers, lawyers, ethicists, have any business setting these prices. I'm not opposed to minimum, right, minimum wages and floors. But the notion that, you know, there might be, you know, amounts that are too high is, is first of all crazy to me. But in addition, I just don't understand the comparison of Indian wages to U.S. wages. I mean, it's just sort of, for all of the reasons that we would expect, is just a poor comparison. And I know you're not the one that primarily makes that comparison. You're citing other people in doing that. But I just don't feel that that's a productive way to think think about the treatment of Indian surrogates, I'm not even sure that focusing on the money is the problem here. Again, you know, given the other things that Indian surrogates tell us, they would improve their lives. Usually, I mean, you know, more money, who wouldn't want more money? But compared to other alternatives, the money, I don't think is at the top of that list for them.
SPEAKER_05:I don't necessarily know that that's true, right? And I certainly don't take the position that there should be an upper cap, right? I mean, this is the kind of labor that in some ways is priceless, right? The foolishness of saying that, right? Because we can always put a price on pretty much anything. So I'm not really worried about the upper cap. I think in large part, what I'm worried about is is the message that we are sending about how we value the very same kind of labor, right? Which again is a unique kind of labor, right? This is not building cars, right? How do we value that type of labor depending upon where you live, right? Depending upon what your other options are in terms of being able to feed your family and depending upon what kind of access to or depending upon what kind of interruption to your life is required in order to participate in this market, right? So for me, it's more of a sort of a broader kind of thought process about, you know, are there particular problematic messages that we are sending about how we value you know particular women um by virtue of saying well this very same thing which maybe is even riskier right for some of these folks um we're going to pay them in a way that that's not necessarily reflective of how we pay people who have more power right and that's that's the real distinction i think like that in the u.s um because women who work, and I will always use women, right? This is a place where I feel comfortable using very gendered language, that women in the United States have some modicum of power that's a little bit different than a lot of these other women are able to exercise. And so for me, it's not just about how do we compare those wages sort of across borders, but it's about how do we think about women what someone's worth is. And that's kind of what we're doing here.
SPEAKER_06:And for you, the fact that it is their worth in a reproductive context is what makes it special, just to clarify, right? Because of course, every time we're paying overseas labor less than American labor, which is most of the time, we are in fact saying that. But for you, it's the context that makes this a special problem.
SPEAKER_05:Yeah, I mean, you know, for when I talk about oftentimes when I, you know, I teach a course in my law school called bioethics, babies and baby making, you know, so I think about these issues all the time. And, you know, when I give talks, I will often say, anytime you have an industry where people are paying money to make other human beings, there are going to be a lot of very difficult questions that are different in substance from how we think about other types of markets, right? Which doesn't mean that there shouldn't be a market. Right. So I'm going to turn
SPEAKER_06:this over to Neva. At this point, she had a question about consumerism that I think is related to what we're talking about, but not duplicative of it. Neva, do you want to? Follow up here. Hi, I'm
SPEAKER_08:Neva Jones, also a 3L at UVA. I think in your article, you were very clear that you think the responsibility or at least the majority of the responsibility for changing the system lies with the agencies. Mm hmm. in the overall system and that the individuals or the intended parents had kind of a minimal responsibility. Specifically, when we talk about their ethical obligations, you said it was kind of akin to dissuading people from using products made by child laborers as an example. However, as you go on in your article, you also talk about how intended parents may have to either delay or forego having a child if they are unable to reconcile, if you will, some of these ethical obligations. In my mind, there's a world of difference between foregoing cage-free eggs and foregoing having a child. So kind of going back to what you said earlier, at the outset about, you know, you just would expect them to do their best. I'm wondering what's in that space between doing your best and foregoing surrogacy and when you would expect a couple to forego surrogacy.
SPEAKER_05:Yeah. I mean, so I think that the, you know, the decision about, you when someone would forego surrogacy is not a decision that I would want to make for people, right? But I could think of a situation, for instance, where you are in the early stages of working with an agency and it comes to your attention that they regularly engage in bait and switch in terms of compensating the women who are working for them, right? That might be a moment where I would think, Maybe you should check out whether there's another agency that you can work with, right? And that, of course, assumes that people are thinking about their responsibility as part of this unique market. And not everybody cares, right? I mean, lots of people just want to have a baby and, you know, whatever happens, happens to the woman who carries that baby to term. But, you know, I think that it's very much a, you know, subjective thing. evaluation of when or if you reach a point where you would rather not have children at all than have children in a context that feels deeply ethically problematic. Yeah, so let me just leave it at that. Unless you have follow-up, I'm
SPEAKER_06:happy to...
SPEAKER_05:expand.
SPEAKER_06:Okay, so Courtney, let me turn to you next. You had, I thought, an interesting question about how people sort of might acquire the necessary information to do their best to use Kim's language.
SPEAKER_02:Yeah, so thank you again for coming to talk with us today. My name is Courtney Inman. I am also a 3L at UVA Law. So one of my questions after reading your article was to kind of, I was wondering if you could expand a little bit on this do your best obligation and like the scope of it. So one of a few of the questions that I had was how much information is enough or when a couple should feel satisfied that there is enough information to even go forward with an agency. And then also, you know, even after they have picked an agency, if information comes to light later in the process. So not only kind of, you didn't mention like if there's a bait and switch or they come to learn that with compensation to kind of choose another, but What if you've already found a surrogate or you've begun the IVF process and the surrogate isn't yet pregnant? What kind of obligation does the couple have at that point?
SPEAKER_05:So, again, you know, as Neva said in the beginning of her question, the onus here really needs to be on agencies and, you know, regulatory bodies. And, you know, one thing I should say, and Kim might remember this from some of my earlier work, because I think she and I were both on the same side of like, don't regulate anything, right? Like, just let it be, you know, let the market do what it will. And I've shifted a little bit away from that, only because of concerns about the level of exploitation that is a to flourish in some of these countries. So as a starting point, people agencies need to have some responsibility in terms of how they collect information, how they share information, what's acceptable, what's not acceptable in a contract, all those sorts of things. How are we going to protect women if intended parents decide they don't want a particular child? These are things that I think are agency responsibilities. And because agencies have typically not taken on those responsibilities because it increases their costs and And they don't want to increase their own costs. That's the only reason why I get into the space of thinking about what might regulation look like here, right? And I worry very deeply about how regulation increase costs. So I do want to be really thoughtful about that. But I think that there are lots of people who, given the opportunity, want to understand what is going on in the background when somebody is carrying a child for them, right? They want to feel good about participating in this industry. And one of the ways that you can feel good about it is knowing that the money is going where it's supposed to go, you know, that the surrogates are being protected in the way that they should be protected, that they're getting proper, you know, medical care. So If that information is available, right? And that's a big starting point, right? So my position is not that, you know, you as an intended parent need to go, you know, dig through the archives and try to figure out what's been happening with this agency. But if the information is available to you, and I... would like a world where it is more available to people, that people could make choices based on an understanding of, you know, this is an agency that actually cares and this is an agency that doesn't care. So I think, you know, two things that are happening there. One is showing respect for the women who work in this market, right? Because it is a market and it is labor. And I think that's important. But I also think that it is a... that it is a way of allowing intended parents who, frankly, might otherwise have some real concerns about participating in this market to feel like they're at least doing it in the best way that you can do it. Does that make sense?
SPEAKER_06:So you raised the question of regulation and how parents both of us, I think, struggle with this and perhaps for the same reason. And I think this is an interesting point because, I mean, as you know, I'm pro-markets, but I'm also pro-regulation because most markets work best if they have a set of rules in place. This is a market where I worry about the motivations for regulation, and perhaps you do too, right? That that it has been and will be sometimes used in a manner that will exclude marginalized parents. It's not so much the case with commercial surrogacy, but with respect to assisted reproduction, you have the issue of embryo destruction that sort of, I mean, it really, I think, is an impediment to getting a lot of regulations that I think many of us would agree on, but that it becomes a different conversation. And so how do we, are you feeling, I guess my question is, are you feeling more optimistic about the ability to balance these concerns now than when you and I first started thinking about these issues? Times haven't, I would like to think that times have changed a little bit since then. Yeah.
SPEAKER_05:Yeah. Probably not that much though,
SPEAKER_06:right?
SPEAKER_05:Crushing my hopes, Kim. We should never allow people to engage in this kind of work. So when I talk about regulation, it is not because I have any sort of ethical or moral objection to surrogacy. I believe that it is a legitimate way for people to use their bodies. I believe it's a legitimate way for people to have children. I believe it's a legitimate way for people to make money. And so, you know, when I think about it in the context of this is a labor market, then the question really becomes, well, how do we regulate labor? Right. So how do we think about things like making sure people are paid for overtime or, you know, making sure that they get workers comp or, you know, there's a whole range of things that are available to people who are workers. And what happens if we think of these women as workers, right. As people who have a right to a level of protection because of the labor. that they're participating in. So I am not, as you say, I'm not interested in things like rules that say you can never destroy embryos or that embryos have to be put up for adoption. I'm not interested in rules that say you have to be a lawfully married couple in order to hire a surrogate. I'm not interested in rules that say you can't use a surrogate if you're single or if you have a disability, right? Like those are not, The things that I am interested in, right, I am interested in how do we take this very unique market and to the extent that we can lessen the risks to the workers in that market.
SPEAKER_06:Great. I'm going to turn this over to Tom, who had a couple of questions, I think, following up on some of the information and regulatory issues that we've been talking about.
SPEAKER_01:Yeah. Hi, I'm Tom. I'm a 3L. You know, I think you've alluded to this a little bit, but, you know, in terms of the obligations that those obtaining surrogacy services should have, do you sort of view this as a continuing obligation throughout the process? or more of an ex ante determination based on the information that's available at the time. Because it seems it can be quite difficult that as you progress in the process, sort of your options to either withdrawal or take remedial action can become more circumscribed. So I'm just wondering what your thoughts are on that.
SPEAKER_05:Yeah, I mean, so yes, I think that it starts certainly as an ex ante obligation, right? To the extent, again, that you can gather information. And as you're thinking about different agencies that are available to you as somebody who wants to hire a surrogate, making a concerted effort to get the information that you can about those particular agencies, right? And that's, you know, even from a consumer standpoint, consumer protection perspective, that makes sense, right? So an agency that, for instance, you know, is known for running off with people's money, that'd be a good thing for you to know before you actually, you know, work with them. So yes, as a starting point, I think that folks should be engaging in some sort of due diligence, given what we know about the The unfortunate, at least now, the unfortunate scarcity of information, you know, finding what you can and acting on that. Definitely. And then throughout the pregnancy. And again, you know, this is the thing that is so that is so fraught about this kind of contractual relationship, because so many things can go awry. in a pregnancy, right? So it could be, you know, what happens if you find out four months in, you do testing and you realize that the person who's the intended father is not actually the genetic father, right? Because even though the contract said you're not allowed to have sex while you're trying to get pregnant for us, she was having sex with her partner, right? You know, what do you do in that circumstance? Or what do you do when a woman is, You know, midway through the pregnancy has to go on bed rest. And, you know, the contract has not sort of, you know, dealt with that. And the agency says we don't owe her any money. Right. And so I think that there is an ongoing obligation as you are watching the. of that pregnancy and watching how the agency deals with various issues that might come up once the pregnancy has begun. But I don't, you know, I think that there would be that the universe of situations in which you might say, okay, I'm just going to turn my back and walk away is pretty small, right? Again, it's not like you commission a painting and somebody, and then you decide halfway through, you don't want the painting anymore, right? Babies aren't paintings. The obligations that you have, once you have started a process that leads to a new person being created, those obligations I think are higher and should be higher than they might be if what you were commissioning was an inanimate object.
SPEAKER_06:I'm going to turn this over to Autumn, who had a question about the analogy that you raise in the paper to sex work. That's a quote from someone else. So I'll just let Autumn ask her question.
SPEAKER_11:Yeah. So hi, I'm Autumn. I'm also a 3L. So I just want to point out, you know, I talked about a quote in the article saying, we can respect the ways in which women choose to use their bodies for economic gain while recognizing that such choices are all made within webs of constraint. So obviously surrogacy is using the woman's body for financial gain. So I just really want to get your take on, you know, why this is allowed to use a woman's reproductive system for money, but sex work is not, you know, is it solely based on societal views and why do you think this?
SPEAKER_05:Yeah. I mean, so, you know, just to be clear as a starting point, sex work should totally be legal, right? I mean, that's, that's my, starting point. So the fact that it isn't, I think, is, you know, very much a reflection of a sort of, you know, puritanical understanding of Sex being special in some in some particular way. So I think that's why we, you know, still and and as well, this sort of sense of, you know, the importance of a female chastity. Right. None of which is is is. Useful or appropriate in the context of thinking of sex work. So I don't think that they should be treated differently. And in fact, I think that there's power in the analogy between sex work and surrogacy because there is so much more conversation now about one, the importance of legalization of sex work and two, that it allows for a level of organizing and shifting of power to sex workers, which I think there would be value of that in the context of surrogacy. Right. I mean, you know, we know of sex workers who unionize, you know, sex workers who can bargain, right, by virtue of working as a unit instead of as individuals. And I think one of the things that allows for exploitation in the surrogacy market is that it is, you know, just a bunch of individual women, right? There's not a sense of this sort of, you know, community that can engage in collective action. So to the extent that there are lessons that we can learn from the kind of organizing that has gone on in the world of sex work, I think there's some real value there for surrogacy. Oddly enough, I don't think that people sort of go in the opposite direction, right, of sort of saying, well, surrogacy is okay, so So let's just make sex work okay. That is not somehow the conversation. That's
SPEAKER_06:what I find interesting about that quote that you have in the paper. And I actually remember, I think when that quote, quote came out because I remember thinking, yes, that's a good analogy, but not for the reasons you think. Right. And I don't know whether it's because, you know, you and I come from a particular place, but I also find the analogy useful. I know many people don't. I think Talia doesn't. For example, I'm going to turn to her in just a minute. But I think in part because to me, they're both just bodily services performed for pay, mostly by women. They elicit repugnance in some quarters. And as you say, it seems to me that we can draw some useful things from looking at them together. Other people have a very different perspective. Talia, I know you have a follow-up question for this. I'm going to turn to you.
SPEAKER_09:Thank you. Yes, I actually, so I am not of this perspective. I actually think that this is better compared to organ donation. And the reason why I think that is because the item that's being bargained for in surrogacy cases, the baby is separated from the surrogate person, whereas with sex work, it falls more in line with being a service rather than a good. So I'm just wondering if you think either of these comparisons are particularly useful in your analysis of surrogacy.
SPEAKER_05:Yeah, I mean, you know, I would repeat, you know, what I was just talking about with Autumn, but I also think that, you know, all of these are situations where people are being asked to step outside of what is considered sort of normal, right? And that, I think, is the constant sort of tug here, right? Because it's not just about, you know, what do we think about the law or what do we think about, you know, women in general, right? It's these sort of really fundamental questions about what does it mean to have bodily integrity? What does it mean to be able to make decisions about how you use your body in an economic way? What does it mean to be a woman with agency? And what does that look like in a world where lots of women don't have agency? So I know why a lot of people reject the sex work comparison. And in part, I think it is because of this feeling of, and I'm not saying that this is where you're coming from at all. But I think that it is in part about this feeling that there's something, there's something beautiful about having a baby and there's something valueless about using sex in order to make, to make, Right. Like there's something dirty about that. And I just I don't see those two things as being so different. Right. I think that they're both about how do we allow people and protect people who are using their bodies in particular ways because there are positive economic consequences that can come from how from how they're using their bodies.
UNKNOWN:Right.
SPEAKER_06:That's interesting, Kim. I'm with you on this. My co-author, Phil Cook, is in the Talia camp. He agrees with her. And I think for many of the reasons that you just said, he is not opposed to sex work, by the way. It's not that he thinks there's anything wrong with it. He just thinks that other people think there's something wrong with it. And therefore, we should avoid, you know, we should compare organ donation, which is a beautiful, helpful thing, to something else that is a beautiful, helpful thing that people do for money. And so I get that, too. But, you know, I guess, you know, if you have sort of an agenda to strip away the normative sort of baggage associated with a lot of these markets, then you may come from it more the way that you and I do. But it's interesting to me to see people's reactions to the analogy, including from people like Talia and Phil, who actually don't have any particular concerns. Moral objection, I think, Talia, tell me if I'm not trying to put words in your mouth to any of these goods and services. They just don't consider the analogy as useful as you and I might.
SPEAKER_05:Also, I mean, the other thing I'll add to this, and I talk about this a little bit in the paper, having reread it. for purposes of talking to you all today. I talk about the sort of myths of motherhood that also play themselves out in the context of surrogacy, right? And so on one hand, part of what is often happening in the context of the world of surrogacy is this sort of gift and valuable narrative about how beautiful is it that a woman will have a baby for another woman because motherhood is so key and how could you live a life without being a mother? And so you have that on one hand, and it's a way of kind of, you know, trying to avoid some of the concerns about exploitation and Right.
SPEAKER_06:Right. And I mean, I'll just say, although it's, you know, it's sort of a weird framing, I think it's a necessary framing, right? I mean, you know, these uncomfortable markets probably couldn't operate in the way that they do and the level that they do without that type of framing, not only for intended parents, but for the providers in the marketplace, right? I mean, and so even though, you know, much like you, it's sort of like, you know, we're paying people thousands of dollars and, you know, but of course it's a donate But I do think it plays a role and probably an important one in sort of facilitating this market, which to my mind is a good thing, but others might feel differently. Talia, I know you had a follow-up question on the prior discussion.
SPEAKER_09:Yes, this might actually be going in the weeds just a little bit, but please bear with me. So we have been discussing sort of three different types of transactions. We've been discussing services and in that realm, you've mentioned like paying surrogates as employees or thinking about employment law to dictate how we treat surrogates. We've been discussing goods, I suppose. So, you know, make a contract for a certain product, get that product, which is the baby. And as long as the product is what you bargained for them, that's great. And then most recently with organ donation, we've also brought up gifts, the idea of a gift. So there's a lot of things going on here and it is actually particularly interesting to hear your perspective on Because some of the way that we describe this changes the outcomes that we have when we're determining the remedies for issues that occur after the surrogacy service has begun, but the good, the baby hasn't been delivered. So what are your thoughts on that? And is there any of these three or maybe another type of description that you would think applies the best to this type of situation?
SPEAKER_05:Yeah. So I haven't done it in a while, but there was a period of time when I was teaching my bioethics babies and baby making class when we would, I have a colleague who's like more of a kind of law and econ person. And we would bring our two classes together. So we would have my bioethics class, which is almost all women. Because it's talking about babies, and I guess only women care about babies, right? That was sarcasm for people who can't see my face. So on one hand, we have that. And then on the other hand, we would bring in these other students who were not coming from that sort of ethical perspective, but were coming much more from this sort of general contracts and that kind of perspective. And so part of the conversation that was always really rich when we brought our classes together was this conversation conversation about one, is it a service or is it a good, right? And people are very uncomfortable with talking about it as the sale of goods, because then it means you're selling babies. And apparently that's not a thing that we do, right? Although there's all kinds of money that is part of transactions that lead to babies living with other people, right? So, you know, that has been very uncomfortable for people. But the other part of it is thinking about, as you say, you know, what are the different So, you know, if you have a contract that says if you as the surrogate, you know, drink alcohol or smoke cigarettes or, you know, use illegal drugs during the pregnancy, that is a breach of the contract. Okay. Right. What do we do with that? Right. So do we do we say, OK, the contract's done? Do we say I get to pay you less money? Do we say, you know, let's wait and see what the baby looks like, which really pushes us into goods? Right. Is it what I wanted? And if it's not what I wanted, then I shouldn't have to pay for it. You know that that that is. Those are the conversations that I think really help us understand why this is such a complicated market. And there's no way out of that. You cannot make it less complicated. You cannot make it less fraught. And so what I think about is, how do we make it more fair if we can't make it less fraught? And sometimes we're not gonna be able to do that successfully, right? I mean, so one of the things that I think about is all of the surrogacy contracts that have abortion clauses, right? Those are never gonna be enforceable, at least not in the United States, but we put them in all of these contracts and it's sort of like, well, what's the message that we're sending there? Why do we put them in the contracts? What exactly is a surrogacy contract intended to do, right? Do we really mean for it to be enforceable in a meaningful way? Or do we just want to... help to sketch out the expectations and the parameters of the parties. So I think that there are lots of little conversations that are underneath the larger conversation of should we allow this to happen in the first place and if you're willing to have that initial conversation and say yes we should we should allow it to happen then you have to be willing to engage in those really difficult other conversations including accepting that there are ways in which this is a exchange of a service and an exchange for goods
SPEAKER_06:thank you kim i have about a million follow-ups i could, but will not ask, especially for the contractual questions. But I want to talk a little bit about the positive right to procreate. You have a paper in the Hastings Center report about this. And so I guess, so there's a couple, a bunch of questions that I'm going to turn over to the students in a minute. But for just as a preliminary matter, one thing that I was interested in is what do we mean, what does this positive right entail? I mean, are we really just talking about paying for reproductive services or is there more to it than that?
SPEAKER_05:So I think there is more to it than that, right? And part of it is about how do we, part of it is about the expressive power of of saying that something is a positive right. And I should say sort of as background, I've been talking about this positive right to procreate stuff for quite some time now. And part of it really flows from another totally separate piece of teaching that I do, which is South African constitutional law. And South Africa's constitution is a human rights-based constitution. It's very young, right? Because it's a post-apartheid constitution and it is full of positive rights, right? Positive right to privacy, positive right to privacy, Right. You know, in our country where it's incredibly expensive to access assisted reproduction and especially surrogacy, right, you know, six figures easily to do a surrogacy arrangement in the United States. Yeah, money is definitely going to be a part of that, but it's also thinking about, you know, You know, how do we make sure that providers are being fair in the way that they are allocating services? How do we think about whether it's appropriate to have particular limitations on how somebody uses those services? So whether it's things like how old are you, you know, as I said before, you know, are you married? You know, even things like how many embryos can you transfer in an IVF cycle, right? So really trying to think about how do we create a set of circumstances where people who are using non-coital reproduction for whatever reason, that people who are using non-coital reproduction have a level of protection in accessing that non-coital reproduction that is closer to, can never be identical, but is closer to the experience that people who have babies coitally have.
SPEAKER_06:Okay. I think that's very helpful for setting the stage for this discussion. So Caitlin, I'm going to turn it over to you. Caitlin Stallings.
SPEAKER_03:Hi, Kim. Thanks so much for being here today. I'm Caitlin Stallings. I am a 3L as well. So my question is kind of something that you just sort of mentioned a little bit. So I kind of maybe got an answer from you, but I want to maybe flesh out your answer a little bit more. It's kind of on the limits of this positive right to procreate. So my first question is, I have two questions. Should surrogacy be limited to those who cannot have their own children for either social or medical reasons? Or should it be open to those who simply don't want to be pregnant and give birth like we've seen with many you know, US actresses, models, those types of people.
SPEAKER_05:I would absolutely say that it should be open to anybody who wants to use it, right? I mean, there are lots of good reasons why someone might not want to be pregnant, frankly. You know, as somebody who's been pregnant twice and was not one of those people who was like, this is the loveliest experience I've ever had, right? I was like, what is this going to be over? So, you know, and I don't think that there is, I think that there is value, or I certainly don't think that there is a lack of value or ethical acceptance in somebody who says, I simply don't want to be pregnant, right? So I would not take the position that it should only be available to people who otherwise cannot have children coitally.
SPEAKER_03:Okay. And then just a second question on the limits of the positive right. Is there anything that you can do to lose the positive right? So one of the things that I was concerned about is if you're convicted of a child sex offense, do you still have a positive right to then procreate? Or what if you've lost custody of your existing children? What if you want to hire a thousand surrogates and have 1,000 children? Is there a limit? And at what point does the government stop having a responsibility to sort of sponsor your right.
SPEAKER_05:So that, I mean, those are, those are some of the, the kind of most fun questions to tease out in this context. And I'm not going to pretend that I have perfect answers at all. But where I'll start is by saying, you know, in the context of coital reproduction, where we have seen, you know, attempts to keep people from exercising that right. It has often happened in ways that are steeped in racism and classism and, you know, lots of other things that we ostensibly think are bad, right? And so my concern always in the context of saying, here's a person who shouldn't have access to having a child is how we are trying how we are deciding what category of people fall into that group, but also how comfortable we are making predictions, right? So, you know, somebody who was, you know, convicted or who was found in a family court or lost parental rights for a child, that doesn't mean that their next child, they will parent exactly the same way, right? Particularly if given resources that they might need in order to be a parent who meets a sort of minimal competence that's expected within our child welfare system. So yeah, I mean, the easy cases are the cases where you say, somebody who's done something horrible to a child, why would we want them to be able to have another child? And certainly, why would we want the state to facilitate them having another child? But what I often think about in those cases is that it doesn't necessarily have to be the government that says, we're not going to let this happen, right? Because fertility providers regularly make decisions about who they're willing to work with and who they're not willing to work with. And the categories that you're describing, right, somebody who, you know, was abusive to a previous child, yada, yada, yada, you know, those are not protected categories. And so if you're a healthcare provider, you could very easily say, you know, find somebody else because I'm not going to do this. And I do believe that that is a backstop in some situations and one that I am potentially more comfortable with. Then the government sort of, you know, laying out what the rules are. Now, having said that, I have also raised concerns about how providers decide who they're going to work with. Right. And that some of the categories that they use for that purpose are deeply, are deeply important. problematic. And so I do recognize that that, you know, leaving it up to, you know, reproductive endocrinologists has its issues as well. Great.
SPEAKER_06:So we have a set of related questions from Madison, Alex, and Neva mostly relating to some of these questions about sort of what the limits are and how we and how a positive right sort of fits into the U.S. legal structure. I'll let you three, you know, my plan was to turn it to Madison. And if Alex and Naval want to follow up, you do that. But you guys can handle it differently if you would prefer.
SPEAKER_12:Thank you. Hi, I'm Madison White. I am also a 3L at UVA Law. And I just had questions, again, regarding kind of the limitations and how that would affect our legal system with a positive right to procreate. So currently in the minority of states that actually do provide some sort of mandate for insurance coverage for fertility treatments, whether that's fertility preservation or IVF, many times you will see in those state laws, pardon me, you will see a limit that'll say, we will only require the insurance cover up to three IVF cycles in the lifetime of the policy holder. If we change to a positive right-based system for reproduction, will those types of limitations then need to be changed, or is that positive right an unlimited right? So
SPEAKER_05:I don't think that, I mean, I cannot think of, I'm doing this off the top of my head, so I'm going to be careful about how I say it. Okay. It is typically the case that any right has limitations, right? I mean, there are very few things that we could think about where we would say there's never an instance where somebody could interfere with that. So I think that's true in this set of circumstances as well. And I think that we would, you know, really have to kind of think about, you know, where are the places where there are limitations that could be set where there's a, you know, an acceptable rationale for that, right? And are we treating, you know, this particular type of treatment differently than we're treating other types of treatment? And can we justify those distinctions, right? So, I mean, insurance companies, I was going to say insurance companies are the worst, but I'll take that back. You know, insurance companies are businesses and, you know, they operate in very particular ways, right? when it comes to how they provide their services. So within that overall vision of what we've decided is acceptable for insurance companies in terms of capping access to particular procedures, I think that there would be ways in which they could potentially cap access. I think in the public insurance sphere, a positive right could be really powerful, right? So, you know, the example I always use is, you know, Medicaid will happily pay for a poor woman to be Right. And so that and that sends a message. I think it sends a very clear message about who's valued and how and how they're valued. And so, you know, a world in which we had a positive right to create might be a world to procreate. Create works, too, though, you know, where we had a positive right to procreate. The government obligation there might look a little different than it does now. And I think there's something valuable about that.
SPEAKER_06:Neva has a follow up to this. I'm going to turn
SPEAKER_08:it over to her. Yes. So my question is, how far would this positive right go when it requires a third party? So circling back to our surrogacy conversation, if you need access to another person's eggs or their womb or their sperm in order to have a child, would the government then have an obligation to help you source those things? Would there be additional ethical requirements to source like I don't know the most ethical egg or the most ethical womb. If you get my, my drift, um, how far would that go for a third party? Because I think ultimately you, I don't know if you're necessarily thinking about their, their scarcity, but there is a requirement for people on the other side of the table to voluntarily enter that market and not be coerced into that market. Here's how you think that would play out.
SPEAKER_05:Um, so, um, as a starting point, obviously nobody should feel forced to participate in the, this, this market, right? So nobody should be forced to be a surrogate because somebody wants to hire one, right? Nobody should be forced to sell their eggs because somebody wants to buy their eggs. So that's, I just want to, it feels obvious, but I want to actually say it out loud. So that's the first thing. And then, you know, the second thing is that, again, we think about how we ration access to goods all the time, right? In ways that we think are good and in ways that we potentially think are really problematic, right? And so I don't think that this would necessarily be that different, right? So it might be, for instance, so think about... some other countries like the United Kingdom, and I've critiqued this in lots of ways, but where they pay for access to fertility services. But the exchange for that is a number of different kind of rules about how you can access and who accesses and when they access. I don't like those rules, but I do like the first part of it. I like the idea that one of the ways that you level the playing field is that you take away some of these barriers, particularly barriers that are based on you know, really problematic myths about what families are good families and who's capable of being a good parent and who's not capable of being a good parent. Right. So I think, for instance, about people with disabilities who often can have difficulty accessing fertility services. So, you know, what I really want is a world in which we using the positive right to procreate to shift our priors, right? And by that, I mean to create a more equitable landscape in thinking about the importance that many people, not everybody, right? There's definitely beauty to being childless, right? But that many people find tremendous value in being able to parent, being able to have children. And my feeling is that a positive right to create puts people in a much more even playing field when we talk about that than exists in our current system.
SPEAKER_06:Great. And Alex, to you. Hi,
SPEAKER_00:Cam. Thanks for joining us. I'm another 3L. It seems like you're placing a lot of weight on the expressive value of having a positive right. And surely that makes a lot of sense. But I was wondering because I know and you know a lot more about South Africa than I do. But I know that criticism that some people have of the positive rights system is this sort of thin versus thick compliance. And how is the government, you know, are they doing enough or is it enough to just take baby steps or how much are they doing to protect people? people's positive rights. And in a situation like this, where there's a market, and we're talking about tearing down barriers, how different is that from a negative right where we just say, you're free from interference from the government in engaging in this market?
SPEAKER_05:So, you know, the point about South Africa is a really good one. And when I teach my class, it is often the case, and one of the things that's really great about the class is that it includes a trip to South Africa. Oh my God, when can I take this class? It's really, really great. But, you know, we have all of these conversations about this constitution and how beautiful it is and, you know, good for them, right? And then we go to South Africa and we meet with people at NG And, you know, and we go, you know, we do township visits. And it is obviously the case that when you have a constitution that is so full of positive rights, you're going to have trouble, right, being able to actually effectuate all of those positive rights. And so what I will And my students are very attuned to that. And so the conversation that I often have with them is, would you rather have a constitution that pushes you to aspire to a certain level of greatness, or do you want a constitution that says, we can't achieve that, so let's just wallow in mediocrity? Which is not to say that the US Constitution is mediocre, but if somebody said that, I might not disagree. So, you know, I think that there is, that that expressive value is really useful in this particular context, especially because we live in a country, you know, Dorothy Roberts, who's a really amazing scholar, she has this really great quote, which is that, you know, if you want to know how a society values you, look at how they deal with reproduction, right? And so, you know, in a country that has had this really painful past and present of deeply stratified reproduction and very clear reproductive hierarchies, that there is something that's a little different from saying, okay, well, we're not going to actively place barriers in your way, right? But we're also not going to take the position that you, like everybody else, should be able to build the family that you want, have the children that you want, parent your children in particular ways. So I think that's important, right? Like, I think that the ways in which we allow these myths of worthiness for pregnancy or procreation or parenting to continue to permeate and sustain themselves in this country need to be broken down, and they need to be broken down in a way that I think is very, very clear. And that's one of the things that I think could happen, right? It's not guaranteed, obviously, but one of the things that could happen with a positive right.
SPEAKER_04:Caitlin? Yeah, so I guess one of the questions that I had is in terms of something like adoption, we make people go through a really long process in order to adopt a child. But then when you talk about, quote unquote, natural procreation, there's no barriers or process. And so I guess in terms of this positive right to procreate, what side of the spectrum do you think it ought to fall on?
SPEAKER_05:Yeah. So one of my earlier pieces that I did not have to reread because Kim didn't assign it to you, is a piece that is very much about treating non-coital reproduction as closely to coital reproduction as we can. And so a piece of that is the kind of often... both invasive and expensive ways that people who adopt are required to sort of open themselves up is not appropriate in the context of non-coital reproduction. And there are a few different reasons why I think that's the case. But one of the most basic ones is, you know, in the context of non-coital reproduction, there's no baby yet. And there might not even actually ever be a baby, given what success rates are. And so we are engaging in this predictive process. Whereas with adoption, there's a baby in the world. There's a child who needs some sort of care and permanency. And we can't just throw up our hands. We can't just say, well, whatever happens to this infant is what happens. So we have... the state's obligation in that set of circumstances feels different to me than the obligation to potentially try to shut down people who maybe don't have any kids at all already. Thank you.
SPEAKER_04:And then I, Oh, I had a second question that was more about the positive right to procreate seems to get rid of many of the barriers in the way of having a child. But there are also many, many financial barriers in the way of raising a child. I forget what the estimated amount that it costs to raise a child for 18 years was, but I believe it was in the six figures. So I was wondering if you had any suggestions as to how we alleviate the latter of those burdens as well.
SPEAKER_05:Yeah. You know, we as a country, on one hand, you know, pat ourselves on the back for how family friendly we are. And yet we have policy after policy that makes it incredibly difficult to have children, to have children and to raise children. So I don't think The piece that I was talking about before, where I was talking about treating non-coital reproduction as coital reproduction, a part of that piece is also making these very clear distinctions between sex, procreation and parenting, right? Those are three separate things, and we should think about them separately, and we should think about, you know, how we deal with them within the context of the law separately, right? You can have sex without wanting to procreate, you can procreate without having sex, and you can parent without doing either of those things. So parenting is absolutely a space where I think that we have failed lots of parents and lots of children in this country, and I do think Thank you. there's a lot more that we could be doing to help families on the front end. I wouldn't necessarily tie that to the right to procreate. Again, in part, because I do, I think those distinctions are really critical, right? You can procreate and not want to parent. So really sort of thinking about, you know, how do we support each of those buckets in their own way, because none of them have to be necessarily connected to each other. And I also want to say, Caitlin, that you're a nodder and I'm totally a nodder as well when people are talking to me. And I love people who nod. So thank you for that.
SPEAKER_06:Okay. So we're going to talk about CRISPR to sort of close up our discussion here today. And Kim, correct me if I'm wrong. I gather this is a topic you haven't written about yet. At least I didn't see it, but I will just say you've been very productive. And so I might have missed it because you had a lot of articles to pick through. But in any event, one thing that we realized as we discussed this is that as a group, we actually don't know a whole lot about CRISPR. And so we... sort of thought that we wanted to start by just inviting you to tell us what you think some of the promises and dangers are of CRISPR and how this fits in to the same promises and dangers or how it differs from the other types of issues that you have previously written about.
SPEAKER_05:Mm-hmm. So I haven't written about CRISPR yet, but I love it as a topic, right? And part of why I love it as a topic is that it, you know... pushes us even further in the direction of thinking about what it means to treat procreation as a consumer event. Because one of the things that happens in the context of assisted reproduction in ways that I think are significantly different sometimes from coital reproduction is that you get to pick and choose. Right. So, you know, I'm not just having a baby with that person that I, you know, that I married who hopefully I love and like want to have babies with. You know, I'm looking through a whole catalog of people who are selling their sperm or I'm looking through a whole catalog of people who are selling eggs or, you know, I'm hiring a particular surrogate because of her body type. Right. And so the ability to engage in choice about not just having a baby, but what kind of baby you want is one of those pieces of assisted reproduction. that I think is really fascinating, but I also think lots of people find to be really problematic, right? So, you know, and there are definitely ethicists, I think of, you know, somebody like Leon Kass, who's a pretty conservative bioethicist who has written very negatively about both how we use things like pre-implantation genetic diagnosis to decide to discard certain embryos and obviously, you know, how we're going to use CRISPR. So CRISPR is this amazing technique. It's one of many different techniques for gene editing, but it's the one that's sort of been easiest and sort of most successful so far. I should always say that right now, it is the expectation that people will not use CRISPR to actually create babies. There's been some controversy overseas of at least one physician who claims to have created babies using CRISPR, but Right now, people are doing experiments, but then they destroy the embryos, right? You're not supposed to actually bring them to fruition. And the process that will be required in order for us to reach a place where you're actually bringing them to fruition involves a level of experimentation on embryos. embryos and future children that I think is going to make it hard for us to get to that point. We will eventually get there, but our tolerance for loss and risk is going to have to be pretty high, right? Because the experimentation there is kind of wild. So the idea of CRISPR is being able to manipulate genes to remove problematic genes so that you can have a child who doesn't have cystic fibrosis or who doesn't have some other genetic condition that otherwise would be thought to be very problematic. And there are ways in which we can do this already. So, you know, with pre-inflammation genetic diagnosis, you know, health providers can screen embryos and say, okay, you don't want to use these three because they're going to be Uh, they'll turn into kids who have taste acts and, you know, taste acts is incompatible with life. And so you don't want to use those embryos and people have to discard. And so one of the benefits, um, depending upon where you sit, one of the benefits of CRISPR is that it means you don't have to discard embryos. You just change them, right? You turn them into something else. Um, and therefore you can keep those embryos. Um, and there's definitely ways in which that could be really useful for people, right? So maybe you don't have to do another IVF cycle and produce more, um, more eggs because we can just fix these embryos and you can use them going forward. So the promise of CRISPR is in some ways the same promise of when we started doing prenatal testing, which is we can give you this information. But the difference is that with prenatal testing, what we offer is don't have this baby at all, right? Whereas with CRISPR, what we offer is just fix it. And you can fix it and then everything will be fine and we can move forward. So I think you're not going to find a lot of people who will critique gene editing to avoid disease or disability. People will get on board with that pretty quickly. What people worry about is a world that's quite far away from us right now, but a world in which people are really building the kind of baby that they want, right? So what does it look like if we live in a world where people can say, not just, you know, I don't want to have a child who is, um, who is deaf, right? But people can say, I want to have a child who has a really good ear for music because I want to have a kid who's a musician. Or I want to have a child who is especially tall because my family doesn't have a lot of athletes, but we want one. So I want you to make me a baby that's going to turn into a really tall kid. And that's where we start to get worried about, you know, One, should we be building babies in this way, right? Are we losing something by virtue of not sort of letting nature take its course? To which my response is often nature is terrible to us. So why are we so attached to nature taking its course? So that's one piece of it. Another piece of it is the lesson that we potentially are sending into the world about bodies that are considered to be disabled bodies, right? So, you know, what does it look like in a world where we say, you know, and this is already true in some countries, right, where almost no babies are born with Down syndrome anymore because so many women test and the vast majority of them have abortions, right? So is that a good thing for us to try to eliminate disability? And then, of course, the third thing, well, two more things. One is that even if we change every single baby who gets born, right, most people who are disabled in this world become disabled, right? Either you get old or you're in an accident or you get sick or whatever. So we can't get rid of disability even if we want to. It will always be there. But when we think differently about disability in a world in which we have tried so hard to eradicate it. And then the last piece is given how expensive assisted reproduction is already, who's going to have access to that kind of manipulation of embryos? Which then kind of brings us back to the positive right to procreate, because would we then say, well, you know, anybody who is using who is using assisted reproduction or who chooses to use assisted reproduction should also have access to CRISPR because that's what creates a level playing field. So my hope is that I'm still around when the first CRISPR babies are born because I think it will be very similar in some ways to when the first IVF babies were born where people thought, they're going to be monsters, right? I mean, who knows what's going to happen here. And I think we're going to find ourselves in a very similar set of circumstances as we watch babies be born with these techniques having been used in order to create them.
SPEAKER_06:So I'm glad you sort of closed with that because, you know, as I listened to sort of the controversies that you laid out, most of these strike me as old issues, right? I mean, these are not controversies that began with CRISPR. These are controversies and debates and worries that people have had certainly with the prior generation of reproductive technology, right? All of these same discussions of sort of what message are we sending about, you know, what sort of people we want? What are we going to do about people trying to create You know, super babies. What are we going to do about the only, you know, some people can afford this? And none of that part of it sounds new. Now, I understand, you know, as I said, I don't know a lot about CRISPR. I understand that it does, you know, introduce some new ethical issues. But the ones that people talk about the most don't sound new to me
SPEAKER_05:at all. They are conversations where it is difficult, if not impossible, to come to a true societal consensus, right? For people who think we shouldn't be doing any of this manipulation of embryos or doing any assisted reproduction, they're always going to be horrified by what's happening here. For people who think assisted reproduction is fine, but that it shouldn't be commercialized and it shouldn't be an industry, they're going to have a problem with this. There will always be people who are part of the disability community who are going to have serious concerns about this. So, you know, that to me just feels like that's the space we're always going to be in. We are not going to find You know, perfect answers to any of this stuff. Great.
SPEAKER_06:So, Samantha, I'm going to turn to you. Hi,
SPEAKER_10:my name is Samantha and I am a 2L at UVA and something that I was wondering that you started touching on a little bit was. CRISPR being used by wealthy individuals. And I was wondering if you could see a situation where a genetic disorder without a cure... afterbirth is mostly prevalent in children of low-income individuals, and whether that would lead to a lack of funding for a cure and a lack of research, because a lot of wealthy individuals then wouldn't be personally impacted by the disease. And those are the people that fund a lot of research and nonprofits, such as the Cystic Fibrosis Foundation, supported a lot by wealthy individuals whose children have cystic fibrosis.
SPEAKER_05:Yeah, I mean, I think that we'll experience what is always sort of true in this country, right? That sort of divide between the haves and the have-nots and the ways in which we value certain people's experiences more than we value other people's experiences. So I would have serious concerns about, for instance, what does it look like in a world in which you know, going back to Medicaid, that, you know, Medicaid doesn't cover CRISPR or Medicaid doesn't cover, you know, prenatal genetic diagnosis, right? Or pre-inflammation genetic diagnosis, right? So that there's this whole class of people who don't have access to this particular piece. Now, what's interesting is And this is a little going off topic a little bit, but this is just because I'm really I love this stuff. So what's interesting is thinking about what are the incentives to actually create access to some of these tools for poor people because it saves money on the back end. Right. So if if we get people on Medicaid and we say, listen, we want you to do, you know, pre-implantation genetic diagnosis and then, you know, we don't want you to use any of the embryos that would turn into a child who's born with a disability. Right. Because we're going to end up paying for that and we don't want to pay for that. Or we want you to use CRISPR because we want you to have a child who has a particular quality, which makes it less likely potentially that that person's going to end up on public assistance. in some future world, right? So imagining what that landscape could look like is pretty terrifying, right? When you think about it. So not just the ways in which wealthy people would get access and therefore might sort of shift the landscape of what are we spending our research dollars on, but also the ways in which the government in an attempt to save resources might be willing to provide some of this to people on the front end as a way to try to avoid having to have obligations to those children on the back end.
SPEAKER_06:I'm going to turn it over to Tom, who has a question. I think that, I mean, it's interesting to me, CRISPR, unlike some of the technologies that we have talked about, sort of began as an international issue in some ways. And so Tom actually has a question about that.
SPEAKER_01:Yeah, so we spoke about in the context of surrogacy that people can engage in cross-border transactions. And that might be a matter of preference, financial need, or because it's outlawed in their home country. So to the extent that that is debatably an issue in that context, you know, we're trying to establish limits on how CRISPR can be used. What are your views on if it's essential to sort of have an international uniform standard or some form of agreement among countries to prevent circumvention and the use of these tools in ways that might be viewed negatively?
SPEAKER_05:Yeah. So just from a practical perspective, I don't think that we would get to a point where we really have... Even if we had an international agreement, there would be lots of countries willing to violate it or who wouldn't sign on, right? Because there's money. There's potentially significant amounts of money in this kind of technology. So I think it'd be very, very hard to do that. Similar to surrogacy, the question for me would be whether countries try to... make it more difficult for their citizens to access this kind of technology overseas. There are a few different ways that people can do that or that countries can do that. But no matter how you try to do it, I think enforcement is incredibly difficult, right? So how do you prove that that person got pregnant overseas and used CRISPR and the embryo that they're pregnant with was a CRISPR altered embryo? So I think it would be very, very hard to do that. And I think what we'll end up with is a system where people who have the resources and who want to use this technology will find a place where they can do that. And we won't be able to stop them from doing that. And then people who don't have those resources will, you know, be stuck in places where they don't have access to that technology. So I think it'll just be a huge, huge patchwork in the same way that, you know, surrogacy is a patchwork or other sorts of access, you know, reproductive technology is a real patchwork.
SPEAKER_06:Great. Well, actually, we do have some more questions, Kim, but I don't want to keep you here forever. You've already been so generous. So I think that with that, we're going to Thank you for your time and let you go. And thank you for teaching us so much today.
SPEAKER_05:Definitely. Thank you so much for having me. It was great to meet all of you and to talk to you. So I hope you remain interested in these issues because these are really core issues about literally what the future of humanity looks like. Right. Not everybody gets to say that, but I get to say that.
SPEAKER_06:What a treat to see Kim again and to have a chance to introduce her to my students. As I mentioned in the interview, I used to see her with some frequency at conferences and things, and obviously those have been on hold for a while. If anything, I feel like she's become even more interesting and eloquent since the last time I saw her.
UNKNOWN:Thank you.
