I really don't think *A LOCKED DOOR* represents such an onerous expense that it would put IVF out of business.
For many people going through IVF they have a hard time getting enough embryos to have children. If through malice or gross negligence those embryos are destroyed you are destroying their ability to have children. It is completely fair for the party who destroyed those embryos to be liable.
If your stance is "we can't define gross negligence" I think that takes things to far. Certainly, "physically secure an area with embryos" is not too high a bar.
I am one of those "crazies" that says that life begins at conception. I think we both agree that the "life begins at birth" crowd are also crazy. But drawing an arbitrary line somehwhere between conception and birth also seems kinda... arbitrary.
But, instead, I want to talk about a brilliant book by a brilliant author hwho notes that most of hwho we are is... genetic! Our hair colour, our skin colour, our personality, intelligence, etc. is genetic. And our genes are determined at... conception!
I was ME from the moment of my conception, you were YOU from the moment of YOUR conception, my daughter was HER from the moment of HER conception: Even if she didn't have eyes already, it was already determined that she would have brown eyes, even if she didn't have hair already, it was already determined that she would have brown hair, even if she didn't have a brain already, it was already determined that she would be smart and a "silly goose" (just like her daddy!), from the moment of conception.
We are US from the moment of conception. Abortion and IVF both destroy human lives. A brilliant gay black boy with an infectious smile, a funny, conscientious Asian girl and thousands more unique individuals are destroyed when someone drops that container of embryos.
So hwhat am I saying: I am unique, therefore I am? kinda... But I know hwhat you're thinking: Does that mean that an identical twin or a clone is... expendable? No. Because they're unique in their own way. They are their own organism.
So, I am against abortion and IVF. I think a lot of pro-lifers don't really think enough about IVF. But we should. I am kinda disappointed in Kay Ivey. Maybe she should watch this video: https://youtu.be/e6VYza7JE6s?si=IatEvvtANchc1dMH
It’s morally irrelevant when life begins. Technically Henrietta Lacks is still alive in thousands of incubators all over the world. It’s absurd to attribute moral worth to cellular metabolism or DNA.
Which should be, I think, a pretty big clue that valuing fertilized embryos (I’m fine with calling them ‘life’ if you insist, but I also am fine with ending life in lots of situations, like when I want a tasty sandwich) the same as babies born into families who want to raise them is really misguided. My wife and I are using IVF to build our family. So the world is going to get 2 post-natal humans, and 13 embryos that are fertilized and then destroyed in the process. That’s a clear, easy-to-see positive in my book, and it’s not even close. Lots of couples trying to have kids the natural way end up with lots of fertilized eggs flushed out in the woman’s period, but I don’t see lots of tears being shed for those ‘lives’ lost. They’re just not that meaningful.
Those genetic traits that you emphasise are (mostly) determined by the time you single out a specific egg and a specific sperm. No need to wait for conception.
(And, in IVF at least, you can pick these cells out individually.)
Conception isn't special in the other direction either. Do you know how identical twins come to be? And their opposite, human 'chimera', where a single person comes from the fusion of embryos from two different fertilised eggs.
There's lot of problems that identical twins bring for your approach. I'll let you puzzle out a few of them, before I enumerate the ones I see.
Funny, I agree on the point that "splitting the difference" on abortion is, pardon the phrase, "cutting the baby in half."
There are two honest points of view:
1. Embryonic and fetal rights are absolute, and a woman's right is contingent at best and irrelevant at worst (you)
2. A woman's right to bodily autonomy is absolute, and the fetus does not have rights until it is viable without the mother (me)
Anything in between is just nonsense. If you believe in a woman's bodily autonomy then you don't get to say what she does with it or anything growing within it. The idea that you pick some random time (4 weeks, 6 weeks, 2 months) is silliness. If you believe that a cell that activates rhythmically (the first embryonic heart cell "heartbeat") is somehow a different thing than a blastocyst or zygote is untenable and make-believe.
If you believe that a woman must carry anything to term that represents a zygotic dividing entity, at least it is honest. It means you also believe a woman is a vessel without rights, but that is a decision. I get that my point means that I think there are no fetal rights. I do believe in very limited fetal rights provided they don't take away bodily sovereignty from a woman.
The challenge is that it is not a big leap from no abortion to no IVF to no contraception, and that is a demonstrably terrible world for women.
Why engage in the hyperbole of saying all consumer protection is suspect. There are plenty of cases where consumer protection exists to combat a genuine market failure or because of demonstrated consumer irrationality. For instance, laws that prevent sellers from lying about the features of their product.
Look, I also think that we engage in quite a bit of overregulation but if we didn't have basic laws preventing outright fraud or the like transaction costs would likely push people towards a few big reliable sources and we'd lose much of that valuable competition.
Saying that "all consumer protection is suspect" is not hyperbole; it is libertarian. The fact that there are exceptions where a libertarian might justify government coercion instead of depending on free individuals to act on their self-interest is not a reason to forgo suspicion of all consumer protection. The known exceptions are rather a reason to restrain suspicion if the evidence merits it.
That position is demonstrably silly and a little immature. Libertarian as it is understood now is just self-centeredness. We have immense experience with high and low-regulation societies, and ones with complex economies and low regulation virtually always end up with resource destruction, exploitation, and immiseration.
I am an Anarchist, and definitely believe people of good will can manage their own affairs, but I am adult enough to realize that when you have power without regulation you have simply horrific consequences.
Read about the IVF clinic at Yale that gave saline as painkiller to their female patients and tell me that regulation isn't necessary.
The Problem with IVF is that it turns human Life into a Product that can be bought and sold. The truth of the industry is that it's extremely predatory, preying on millennial women who have been getting lied to their whole life about getting married and having kids young like they should, and vulnerable parents who have fertility issues by offering them a snake oil cure. The results are bad, for starters they are almost always unsuccessful, given the cost a failure rate of 80% or higher is pretty bad. And even when successful the majority of IVF kids will have all sorts of Health and Developmental issues bc at the end of the day, it's not natural. You can't just Frankenstein humans in a lab and expect their to be no consequences. The entire industry is built on a lot of empty promises and outright lies. This isn't even getting into the Ethics of IVF and how if you view life as beginning at Conception you must oppose IVF on the grounds of how it is practiced (multiple embryos at a time which many die, freezing of fertilized embryos=incarceration without a trial, Man playing God, etc) Alabama made the wrong call, they had an opportunity to eradicate the practice entirely from the state but the GOP got scared bc they recognize the Overton window has shifted the majority of their Conservative based away from Traditional Conservatism and into 1970s Liberalism.
From my understanding, IVF clinics in Alabama actually paused treatment because they suspected they might be held responsible for the accidental destruction or disposal of embryos due to the ruling. This seems like a reasonable response to a court ruling which left them potentially responsible for the death of many "minors." Not wanting be legally responsible for killing hundreds of "minors" is a reasonable response even if you are pretty confident that what you're doing is okay. Pausing treatment was a reasonable response given the situation. And so it was looking like Alabama women were going to lose access IVF and people were rightfully not happy with this. Although it may not be on account of Dobbs, I am unsure why this is all so "hysterical."
I would be willing to wager a lot of money that, had an Alabama Clinic performed IVF between the case ruling and the legislation, there would be a 0% chance it being sued for Wrongful Death unless it was a case identical to the one ruled on (gross negligence far out of line with basic medical practices).
What odds would you have given me on such a bet before the fact? I would have taken them at pretty long odds.
The case was what it was and says what it says. There was no particular reason to believe it weighed in on IVF more broadly, and its really just hysterics and the news cycle that unfortunately caused a lot of women unnecessary hardship for awhile.
The difference in time between the ruling and law was ~2.5 weeks I think, so I would say that the chance is very small (0.75%?) for a non-identical case. I could imagine another case in the long run if there was no legislation, but I don't really know. Given the lack of certainty, it seems reasonable to be precautious for a few weeks. I am not an attorney so can't be really confident, but the IVF clinics may have a similar level of uncertainty and the downside could be large.
To clarify it only left them responsible for the wrongful death tort in relation to those destroyed embryos. The ruling specifically held this law swept wider than the criminal laws about murder etc.
I’m genuinely confused about Bryan’s argument here, because I don’t think this was a consumer protection law—it was liability for negligence. Wouldn’t Bryan’s argument cut against tort law generally? For tort law to work well, you have to assume that juries are awarding verdicts proportional to the actual harm caused, which I grant is a stretch, but I’m not sure that a complete shield is appropriate either. If I drop my computer off at a computer repair shop, and the guy working on it spills his Mountain Dew all over it, I don’t see the justification for a law that says that I can’t sue him for the cost of my computer, even if Bryan is correct that such a law would generally make computer repair services cheaper, presumably because they won’t bother buying insurance against such liabilities. It seems like this would artificially push quality down, and is like making everyone sign a bulletproof waiver of liability, even if they don’t want to. Given how much people care about forming their families, I don’t think that is where the average customer would likely want to allocate the risk of a loss through contract.
Yes, if you read the opinions (as most journalists did not), the case is actually a quite straightforward case of statutory interpretation. The pause was - I think - part of an organized effort to secure immunity from normal tort damages for what appears to have been gross negligence by the clinic (no lock on the door to the room with the freezer, no lock on the freezer, no control on access to the storage area). We can only say it "appears" because the trial judge dismissed the case without allowing the plaintiffs any discovery as to what happened, so the bare bones description provided by the clinic is the only factual account. Assuming the AL SCT does not change its mind on rehearing (the defendants have sought rehearing), we will learn more as discovery proceeds. Note: the AL legislature's grant of immunity to the IVF industry will not affect these cases since AL also bans retroactive legislation.
I agree, though I think the AL court wouldn't have been crazy to go the other way.
I mean the real policy difference here is that I don't think wrongful death is something the clinic can ask the consumers to waive as a condition of offering treatment so I do think it's good they changed the law (if you wanted to I suspect you could enter into a contract that specified some large liquadated damages clause for negligent destruction but likely no one is taking the other end of that).
Yes, the dissent makes reasonable arguments for construing the statute the other way, although I think (on balance, having listened to the extensive oral argument in the case, read the opinions, and read the briefs on the petition for rehearing) that the majority got it right. As a policy matter, a court could have gone either way but, as the majority repeatedly stressed, AL is not a state where the courts do policy. They read the statute and construed it in a very textualist way and did so entirely reasonably.
I am not sure why you couldn't waive a wrongful death claim. Even if you can't, however, I don't see why that's a problem for the IVF industry - the key is not being negligent. All of the cases of negligence that the bioethics, reproductive medicine, etc. literatures have reported are based on one of the following (as far as I can tell): (1) negligence in using the wrong solution to store the embryos in; (b) negligence in not having temperature alarms to alert staff when there is a problem during hours the clinic is closed; (c) using equipment that fails, which may or may not have been negligent; and, in the AL case, (d) not controlling access to the storage room and freezer. All of those are things that medical facilities deal with routinely and generally don't have problems with. Any insurer would insist on things like alarms on the units for temperatures rising or locks on doors if there were potential wrongful death damages. So I think a new equilibrium of straightforward procedures and equipment being used would quickly be reached after a wrongful death suit or two was filed.
The mystery in the AL case is why the clinic was so negligent - I think we will find out in the next couple of years as discovery proceeds.
Regarding the list you gave 1-4, I fear only 4 is going to apply in practice without further laws.
Absent another law the clinic can just regularly toss records of temperature, alarm status etc etc and be effectively immune to suit on such matters and that's what such liability would incentivize. Without said records how do you ever prove they were negligent and it caused the problem? That's why I feel it's bad policy. Not to mention the fact that proving negligence in such matters is going to have alot of overhead in legal costs.
I'm open to some targeted regulation which forced all those records to be kept. But absent that I fear it just incentivizes avoiding freezers that keep temperature records and other things we probably want them dojng.
Is your belief that private actions (torts litigation specifically) are bad? If not, then isn’t removing civil liability turning off the ability to sue a bad thing unless it is a really limited civil immunity?
I think the issue is that torts like wrongful death can't necessarily be contracted away. That's why the airline can't simply insist that anytime you fly you sign away the right to sue for wrongful death.
I presume you could place a liquadated damages clause in your IVF contract which says: if you neglicently destroy my embryos you owe me Y. So it's more about freeing up the ability of the consumer and clinic to freely contract.
There is actually an issue in the AL cases of whether or not the plaintiffs agreed to contractual provisions that would bar a wrongful death suit - that's an issue that is going to be litigated on remand.
Interesting, my understanding was that usually torts that were based in neglicence couldn't be waived and specifically wrongful death suits. But if it was clearly allowed than why would there have been any concern about the continuing financial viability of IVF clinics in the state?
You sure that wasn't on the alternative theory they also sued under?
The plaintiffs sued under multiple theories: 1) the Wrongful Death of a Minor Act, 2) common law negligence (the LePages and the Fondes) and common law negligence and wantonness (the Aysennes). The common law claims were pled in the alternative, and would apply only if the first claim was not allowed; 3) breach of contract (Aysennes); and bailment (Aysennes). Somewhat bizarrely IMHO, the trial court dismissed 1 and 2 on a motion to dismiss.
Justice Cook (who dissented on the Wrongful Death claim) would have allowed the negligence and wantonness claims to proceed. He aptly characterized the defendants' argument that they weren't liable under either theory 1 or 2 as producing a Catch-22 for the plaintiffs.
As far as waiving claims, I'm not a practicing lawyer, let alone a practicing AL one. But I think you can waive the claims (this brief discussion in terms of high risk activities suggests waivers work except for gross negligence - https://www.garybrucelaw.com/personal-injury/the-importance-of-holding-businesses-accountable-examining-waiver-enforcement-in-georgia-and-alabama/ ). Arguably what happened in LePage might count as gross negligence - I am baffled that basic precautions like a lock on the door and a lock on the freezer weren't taken - but we don't know much about the facts since the cases were dismissed very early.
Given that he has said that the "process is the punishment" wrt Title IX SA investigations, I think he would be inclined to grant near-blanket immunity from suit.
Agreed process can be punishment. But at the same time litigation is important. First it helps distributional issues. Second it helps markets with non iterative players.
The key is dismissing bad lawsuits quickly (eg arbitration) and limiting the scope of things subject to suit (eg hurt feelings not justiciable; broken contract or accident justiciable)
Just to explain why the coverage of this decision was genuinely hysterical let me note the following:
1) Quite a few states allow for wrongful death suits when someone negligently causes a woman to lose a pregnancy many at anytime after conception --including blue states like IL.
2) Letting wrongful death statutes cover unborn children is a reasonable policy choice even if you are deeply pro-choice since otherwise pregnant couples who have suffered a very real loss do to someone else's negligence wouldn't have any recourse, e.g., say your doc doesn't bother to ask if you are pregnant before giving you a medication that causes you to lose your child.
3) Once you say that the wrongful death statute covers a fetus at any point after conception it's a totally reasonable interpretation to think it covers said fetus inside or outside the womb. Indeed, it would be weird to treat them differently absent wording in the law to suggest doing so.
4) So judges in AL just reasonably applied an existing law to a novel circumstance. It didn't result in good policy but that's not the judge's job. The legislature saw that the existing law was broken and fixed it.
At no point was there any suggestion (except maybe in the batshit concurrence by one crazy judge) that this implied anything about the status of a fetus under other laws like murder. This was just the court and legislature both doing their job.
I am in agreement halfway through point #4. This was a straightforward case of statutory interpretation - as the majority opinion put it, the issue was whether there was an unwritten exception to the law for extra-utero embryos. Being a state that takes textualism pretty seriously, it was easy for the AL SCT to find there was not.
I don't agree that it wasn't good policy. Tort suits for negligently causing the wrongful death of another (or other losses) aren't bad policy - the IVF industry has, according to industry surveys, quite a few problems with negligence - using the wrong solution, using equipment that malfunctions, using outdated equipment, not having alarms for when equipment malfunctions. These make up a relatively small number of cases compared to the total number of embryos created and/or in storage, but a few wrongful death verdicts would likely incentivize greater degrees of care. Since at least some of the reported cases in which negligence or worse caused the destruction of embryos, that seems like a reasonably good outcome. Indeed it seems like a key function of tort law to incentivize people to behave non-negligently. While there are certainly problems with current tort law, the few facts we know about the AL case suggest that the degree of negligence by the clinic was pretty huge - the problem could have presumably been prevented by a lock on the door to the storage room or on the freezer or on the basic kind of facility access control that hospitals, pharmacies, etc. all routinely provide.
Honestly, I wonder why there aren't IVF centers that have payment plans based on success -- though maybe patients have to get their PCP or insurance or whatever to certify they haven't already tried elsewhere.
I have a family member who has successfully had a donor embryo become a child and is working on #2. She's worked with 2 IVF centers, one successful and one not. There is considerable difference between those two (differences to which we attribute the success with one and the failure with the other, at least in part). Payment for both is cash up front (there are payment plans but the payments are all in advance of the procedure, although there is a fair bit of lead in time to prepare for the implantation during which payments can be made while you're getting meds, etc.). It isn't cheap and insurance coverage is can be hard to come by.
The issue isn't whether you can hold the IVF clinic liable, you could presumably sue under a normal non-wrongful death property theory, but whether you can contract away that right in your agreement with the IVF center. I believe that usually it's considered against public policy to be able to waive a wrongful death tort while your agreement with the IVF clinic could wave that on a pure destruction of property theory.
Ultimately, there is some optimal non-perfect level of care that any customer wants their IVF center to take. The question is what's the ideal way to incentivize that. I don't think this kind of law is particularly helpful because it mostly imposes really large potential liability in rare circumstances (when a thief breaks in so you actually learn about it rather than just being told sorry those cells aren't viable anymore or whatever vague misdirection).
The primary concern for 99% of customers isn't the IVF center having some crazed patient break in but them having procedures that maximize the chances things -- stuff that isn't really affected by this.
I'm not with Bryan in just assuming all markets are efficient and transaction costs 0 but I fear pushing more of the cost onto relatively uncommon concerns rather than . No, I don't have a good idea how to let people know about the quality of their IVF provider but I don't think wrongful death suits are a good mechanism.
I'm not sure that it matters what the primary concern is for IVF customers - I suspect that if asked, most of them (like virtually all consumers of any medical procedure) would say they highly valued non-negligent behavior. And unfortunately negligence in IVF - according to industry reports - isn't so rare that it can be dismissed easily. There have been some significant equipment failures where relatively trivial cost alarm systems would likely have prevented the problem. Exactly what the right tort remedies are in cases of negligence (perhaps caps on punitive damages, etc. may make sense in some cases) but - based only on the very little we know about the AL clinic - it seems to me that a really big liability award might be justified since the cost of preventing the problem (door locks, freezer locks) is pretty trivial next to the harm caused. There's so much that we don't know about what happened, but that's what discovery is for.
In fact a problem is that under AL law, at least according the the trial court, which dismissed the plaintiffs' negligence and wantonness claims which were pled in the alternative to the Wrongful Death Act claims, was that they were barred "by Alabama's longstanding prohibition on the recovery of compensatory damages for the loss of human life." (quoting the AL SCT). (The AL SCT did not reach this issue, since it allowed the Wrongful Death Act claims.) In this case, therefore, the only remedy the parents have for the loss of the embryos is the Wrongful Death Act. Immunizing medical providers for their negligent acts strikes me as creating bad incentives.
That's interesting re: the alternative but I think in any situation like this we need to weigh the extra costs imposed against the benefits.
If there was a well defined notion of what constituted neglicence here I'd be more sympathetic but absent this law I imagine insurance is covering the risks that a court will hold that merely having X backup power system is negligent because many clinics in fact use an even more protective system.
Especially in medicine there is a tendency for these laws to, in practice, force all clinics to converge on some standard system which essentially prevents offering cheaper options (and often in reality the system converged on isn't safer it's just a standard offered by a big vendor). Not to mention actively discouraging saving any information that could be used to prove liability.
I don't want an IVF clinic to attempt to implant embryos that likely will fail because they've gotten too warn because they all stripped off any permanent temperature logging to prevent lawsuits from succeeding.
I'd rather avoid developing a precedent here just based on pure judicial analogy that can't really weigh the likely incentives and wait for the legislature to tailor specific regulations in this area as needed.
One thing I learned from the ruling is that the judge considered the fact that legislation was going to be necessary to handle cases involving "artificial wombs" which are no doubt coming in the near future.
Isn't the hysteria more over the fact that our minoritarian reactionary SC will leverage this or similar cases to continue ratcheting up the backwards far right morals they enforce through judicial legislation?
Isn't the hysteria more over the fact that our minoritarian reactionary SC will leverage this or similar cases to continue ratcheting up the backwards far right morals they enforce through judicial legislation?
Investigating and reporting on consumer protection issues is what turned John Stossel into a libertarian. He started out as a Ralph Nader-style leftie. But he came to realize that market competition is the only real consumer-protection mechanism.
“Anything that reduces costs increases supply, anything that increases supply reduces prices, and anything that reduces prices helps consumers”
Unless of course like virtually every other branch of medicine there are huge or impassable barriers to entry. Then it’s not clear this will do anything at all to reduce costs. It’d be like if I absolve hospitals of all tort liability but don’t allow anyone else to do what hospitals do
Furthermore, isn't the cost of IVF drugs is the largest component of total costs?
The term "competitive industry" is doing a lot of work in the main argument.
And consumer protections, such as they are, are actually quite minimal. For example, theres generally no refunds for partial treatment and then backing off.
I get that consumer protections are a favorite hobby horse, but this ain't it Professor.
Only about 12% of the population opposes IVF. Even amongst the hardest cored abortion opposers that think it's wrong in all cases, only 16% of those people think IVF is wrong in all cases.
This was a non-issue blown up for a new cycle, and it's said that some women in Alabama had to suffer awhile for a news cycle. I also feel bad for people that may lose their embryos due to future clinic negligence.
That's a lot of Catholics who are not conforming to the teachings of the church. It's crazy that there are Catholics who support abortion so it doesn't surprise me howany support IVF dispite the Magisterium being Crystal Clear that IVF is Prohibited under Canon Law and grounds for Excommunication
If Caplan's argument holds, IVF costs in Alabama will fall so far eventually that the state will become a magnet (worldwide?) for customers seeking cheap IVF. This SHOULD become noticeable over time. Can invest in the (Alabama) industry?
Not sure about Caplan’s argument that government granted liability shields as good because they lower costs. I suspect overall lower costs and better quality by shifting away from regulation toward more reliance on tort law to compensate consumers for actual damages caused by corporate negligence or malfeasance. The recent vaxx debacle is a case in point.
I really don't think *A LOCKED DOOR* represents such an onerous expense that it would put IVF out of business.
For many people going through IVF they have a hard time getting enough embryos to have children. If through malice or gross negligence those embryos are destroyed you are destroying their ability to have children. It is completely fair for the party who destroyed those embryos to be liable.
If your stance is "we can't define gross negligence" I think that takes things to far. Certainly, "physically secure an area with embryos" is not too high a bar.
The IVF clinics can lock their doors without being required to do so by law.
And when they don't and someones only chance at having a child is destroyed I think they ought to be liable in an appropriate way.
Sure . But contract law can handle that.
I am one of those "crazies" that says that life begins at conception. I think we both agree that the "life begins at birth" crowd are also crazy. But drawing an arbitrary line somehwhere between conception and birth also seems kinda... arbitrary.
I could point out the fact that a zygote is a living human organism. I could point to this excellent article about it: https://secularprolife.org/2017/08/a-zygote-is-human-being/
But, instead, I want to talk about a brilliant book by a brilliant author hwho notes that most of hwho we are is... genetic! Our hair colour, our skin colour, our personality, intelligence, etc. is genetic. And our genes are determined at... conception!
I was ME from the moment of my conception, you were YOU from the moment of YOUR conception, my daughter was HER from the moment of HER conception: Even if she didn't have eyes already, it was already determined that she would have brown eyes, even if she didn't have hair already, it was already determined that she would have brown hair, even if she didn't have a brain already, it was already determined that she would be smart and a "silly goose" (just like her daddy!), from the moment of conception.
We are US from the moment of conception. Abortion and IVF both destroy human lives. A brilliant gay black boy with an infectious smile, a funny, conscientious Asian girl and thousands more unique individuals are destroyed when someone drops that container of embryos.
So hwhat am I saying: I am unique, therefore I am? kinda... But I know hwhat you're thinking: Does that mean that an identical twin or a clone is... expendable? No. Because they're unique in their own way. They are their own organism.
So, I am against abortion and IVF. I think a lot of pro-lifers don't really think enough about IVF. But we should. I am kinda disappointed in Kay Ivey. Maybe she should watch this video: https://youtu.be/e6VYza7JE6s?si=IatEvvtANchc1dMH
It’s morally irrelevant when life begins. Technically Henrietta Lacks is still alive in thousands of incubators all over the world. It’s absurd to attribute moral worth to cellular metabolism or DNA.
Abortion is murder, so it's bad. IVF creates life, so its good.
90% of non-sperg pro-life people can understand these basic facts.
IVF creates life ... and then destroys most of it.
Natural conception results in a very high spontaneous abortion rate. Trying to conceive naturally is likely to result in the death of an embryo. https://www.parrhesia.co/p/opponents-of-ivf-should-oppose-natural
Which should be, I think, a pretty big clue that valuing fertilized embryos (I’m fine with calling them ‘life’ if you insist, but I also am fine with ending life in lots of situations, like when I want a tasty sandwich) the same as babies born into families who want to raise them is really misguided. My wife and I are using IVF to build our family. So the world is going to get 2 post-natal humans, and 13 embryos that are fertilized and then destroyed in the process. That’s a clear, easy-to-see positive in my book, and it’s not even close. Lots of couples trying to have kids the natural way end up with lots of fertilized eggs flushed out in the woman’s period, but I don’t see lots of tears being shed for those ‘lives’ lost. They’re just not that meaningful.
Why stop at conception?
Those genetic traits that you emphasise are (mostly) determined by the time you single out a specific egg and a specific sperm. No need to wait for conception.
(And, in IVF at least, you can pick these cells out individually.)
Conception isn't special in the other direction either. Do you know how identical twins come to be? And their opposite, human 'chimera', where a single person comes from the fusion of embryos from two different fertilised eggs.
There's lot of problems that identical twins bring for your approach. I'll let you puzzle out a few of them, before I enumerate the ones I see.
Funny, I agree on the point that "splitting the difference" on abortion is, pardon the phrase, "cutting the baby in half."
There are two honest points of view:
1. Embryonic and fetal rights are absolute, and a woman's right is contingent at best and irrelevant at worst (you)
2. A woman's right to bodily autonomy is absolute, and the fetus does not have rights until it is viable without the mother (me)
Anything in between is just nonsense. If you believe in a woman's bodily autonomy then you don't get to say what she does with it or anything growing within it. The idea that you pick some random time (4 weeks, 6 weeks, 2 months) is silliness. If you believe that a cell that activates rhythmically (the first embryonic heart cell "heartbeat") is somehow a different thing than a blastocyst or zygote is untenable and make-believe.
If you believe that a woman must carry anything to term that represents a zygotic dividing entity, at least it is honest. It means you also believe a woman is a vessel without rights, but that is a decision. I get that my point means that I think there are no fetal rights. I do believe in very limited fetal rights provided they don't take away bodily sovereignty from a woman.
The challenge is that it is not a big leap from no abortion to no IVF to no contraception, and that is a demonstrably terrible world for women.
I don't see why a compromise position that holds that abortion is ok-ish only at the start of the pregnancy is supposedly dishonest?
It's the view held by the vast majority of humanity in practice. (Or at least held by the majority of legal systems weighted by population.)
Why engage in the hyperbole of saying all consumer protection is suspect. There are plenty of cases where consumer protection exists to combat a genuine market failure or because of demonstrated consumer irrationality. For instance, laws that prevent sellers from lying about the features of their product.
Look, I also think that we engage in quite a bit of overregulation but if we didn't have basic laws preventing outright fraud or the like transaction costs would likely push people towards a few big reliable sources and we'd lose much of that valuable competition.
Saying that "all consumer protection is suspect" is not hyperbole; it is libertarian. The fact that there are exceptions where a libertarian might justify government coercion instead of depending on free individuals to act on their self-interest is not a reason to forgo suspicion of all consumer protection. The known exceptions are rather a reason to restrain suspicion if the evidence merits it.
It depends on whether you are a libertarian from the anarchist tradition or the classic liberal one.
The latter recognizes regulation primaly from the common law (it is amazing how the common law evolved to be largely a Pareto improvement).
That position is demonstrably silly and a little immature. Libertarian as it is understood now is just self-centeredness. We have immense experience with high and low-regulation societies, and ones with complex economies and low regulation virtually always end up with resource destruction, exploitation, and immiseration.
I am an Anarchist, and definitely believe people of good will can manage their own affairs, but I am adult enough to realize that when you have power without regulation you have simply horrific consequences.
Read about the IVF clinic at Yale that gave saline as painkiller to their female patients and tell me that regulation isn't necessary.
The Problem with IVF is that it turns human Life into a Product that can be bought and sold. The truth of the industry is that it's extremely predatory, preying on millennial women who have been getting lied to their whole life about getting married and having kids young like they should, and vulnerable parents who have fertility issues by offering them a snake oil cure. The results are bad, for starters they are almost always unsuccessful, given the cost a failure rate of 80% or higher is pretty bad. And even when successful the majority of IVF kids will have all sorts of Health and Developmental issues bc at the end of the day, it's not natural. You can't just Frankenstein humans in a lab and expect their to be no consequences. The entire industry is built on a lot of empty promises and outright lies. This isn't even getting into the Ethics of IVF and how if you view life as beginning at Conception you must oppose IVF on the grounds of how it is practiced (multiple embryos at a time which many die, freezing of fertilized embryos=incarceration without a trial, Man playing God, etc) Alabama made the wrong call, they had an opportunity to eradicate the practice entirely from the state but the GOP got scared bc they recognize the Overton window has shifted the majority of their Conservative based away from Traditional Conservatism and into 1970s Liberalism.
From my understanding, IVF clinics in Alabama actually paused treatment because they suspected they might be held responsible for the accidental destruction or disposal of embryos due to the ruling. This seems like a reasonable response to a court ruling which left them potentially responsible for the death of many "minors." Not wanting be legally responsible for killing hundreds of "minors" is a reasonable response even if you are pretty confident that what you're doing is okay. Pausing treatment was a reasonable response given the situation. And so it was looking like Alabama women were going to lose access IVF and people were rightfully not happy with this. Although it may not be on account of Dobbs, I am unsure why this is all so "hysterical."
I would be willing to wager a lot of money that, had an Alabama Clinic performed IVF between the case ruling and the legislation, there would be a 0% chance it being sued for Wrongful Death unless it was a case identical to the one ruled on (gross negligence far out of line with basic medical practices).
What odds would you have given me on such a bet before the fact? I would have taken them at pretty long odds.
The case was what it was and says what it says. There was no particular reason to believe it weighed in on IVF more broadly, and its really just hysterics and the news cycle that unfortunately caused a lot of women unnecessary hardship for awhile.
The difference in time between the ruling and law was ~2.5 weeks I think, so I would say that the chance is very small (0.75%?) for a non-identical case. I could imagine another case in the long run if there was no legislation, but I don't really know. Given the lack of certainty, it seems reasonable to be precautious for a few weeks. I am not an attorney so can't be really confident, but the IVF clinics may have a similar level of uncertainty and the downside could be large.
I would give you the same odds if the time period was measured in years.
I just don't think anyone was in danger of an adverse outcome simply from practicing IVF within normal practices after reading the case.
I’m updating my impression of the case in your direction. Thank you.
To clarify it only left them responsible for the wrongful death tort in relation to those destroyed embryos. The ruling specifically held this law swept wider than the criminal laws about murder etc.
I’m genuinely confused about Bryan’s argument here, because I don’t think this was a consumer protection law—it was liability for negligence. Wouldn’t Bryan’s argument cut against tort law generally? For tort law to work well, you have to assume that juries are awarding verdicts proportional to the actual harm caused, which I grant is a stretch, but I’m not sure that a complete shield is appropriate either. If I drop my computer off at a computer repair shop, and the guy working on it spills his Mountain Dew all over it, I don’t see the justification for a law that says that I can’t sue him for the cost of my computer, even if Bryan is correct that such a law would generally make computer repair services cheaper, presumably because they won’t bother buying insurance against such liabilities. It seems like this would artificially push quality down, and is like making everyone sign a bulletproof waiver of liability, even if they don’t want to. Given how much people care about forming their families, I don’t think that is where the average customer would likely want to allocate the risk of a loss through contract.
I think Bryan would say that some repair shops might offer guarantees against damage, and consumers would pay for that if they want.
Yes, I agree it does seem to be a general argument against at least unwaivable torts which seems to prove far too much.
Yes, if you read the opinions (as most journalists did not), the case is actually a quite straightforward case of statutory interpretation. The pause was - I think - part of an organized effort to secure immunity from normal tort damages for what appears to have been gross negligence by the clinic (no lock on the door to the room with the freezer, no lock on the freezer, no control on access to the storage area). We can only say it "appears" because the trial judge dismissed the case without allowing the plaintiffs any discovery as to what happened, so the bare bones description provided by the clinic is the only factual account. Assuming the AL SCT does not change its mind on rehearing (the defendants have sought rehearing), we will learn more as discovery proceeds. Note: the AL legislature's grant of immunity to the IVF industry will not affect these cases since AL also bans retroactive legislation.
I agree, though I think the AL court wouldn't have been crazy to go the other way.
I mean the real policy difference here is that I don't think wrongful death is something the clinic can ask the consumers to waive as a condition of offering treatment so I do think it's good they changed the law (if you wanted to I suspect you could enter into a contract that specified some large liquadated damages clause for negligent destruction but likely no one is taking the other end of that).
Yes, the dissent makes reasonable arguments for construing the statute the other way, although I think (on balance, having listened to the extensive oral argument in the case, read the opinions, and read the briefs on the petition for rehearing) that the majority got it right. As a policy matter, a court could have gone either way but, as the majority repeatedly stressed, AL is not a state where the courts do policy. They read the statute and construed it in a very textualist way and did so entirely reasonably.
I am not sure why you couldn't waive a wrongful death claim. Even if you can't, however, I don't see why that's a problem for the IVF industry - the key is not being negligent. All of the cases of negligence that the bioethics, reproductive medicine, etc. literatures have reported are based on one of the following (as far as I can tell): (1) negligence in using the wrong solution to store the embryos in; (b) negligence in not having temperature alarms to alert staff when there is a problem during hours the clinic is closed; (c) using equipment that fails, which may or may not have been negligent; and, in the AL case, (d) not controlling access to the storage room and freezer. All of those are things that medical facilities deal with routinely and generally don't have problems with. Any insurer would insist on things like alarms on the units for temperatures rising or locks on doors if there were potential wrongful death damages. So I think a new equilibrium of straightforward procedures and equipment being used would quickly be reached after a wrongful death suit or two was filed.
The mystery in the AL case is why the clinic was so negligent - I think we will find out in the next couple of years as discovery proceeds.
Regarding the list you gave 1-4, I fear only 4 is going to apply in practice without further laws.
Absent another law the clinic can just regularly toss records of temperature, alarm status etc etc and be effectively immune to suit on such matters and that's what such liability would incentivize. Without said records how do you ever prove they were negligent and it caused the problem? That's why I feel it's bad policy. Not to mention the fact that proving negligence in such matters is going to have alot of overhead in legal costs.
I'm open to some targeted regulation which forced all those records to be kept. But absent that I fear it just incentivizes avoiding freezers that keep temperature records and other things we probably want them dojng.
Usually waivers of things like wrongful death claims are void as against public policy no?
Is your belief that private actions (torts litigation specifically) are bad? If not, then isn’t removing civil liability turning off the ability to sue a bad thing unless it is a really limited civil immunity?
I think the issue is that torts like wrongful death can't necessarily be contracted away. That's why the airline can't simply insist that anytime you fly you sign away the right to sue for wrongful death.
I presume you could place a liquadated damages clause in your IVF contract which says: if you neglicently destroy my embryos you owe me Y. So it's more about freeing up the ability of the consumer and clinic to freely contract.
There is actually an issue in the AL cases of whether or not the plaintiffs agreed to contractual provisions that would bar a wrongful death suit - that's an issue that is going to be litigated on remand.
Interesting, my understanding was that usually torts that were based in neglicence couldn't be waived and specifically wrongful death suits. But if it was clearly allowed than why would there have been any concern about the continuing financial viability of IVF clinics in the state?
You sure that wasn't on the alternative theory they also sued under?
The plaintiffs sued under multiple theories: 1) the Wrongful Death of a Minor Act, 2) common law negligence (the LePages and the Fondes) and common law negligence and wantonness (the Aysennes). The common law claims were pled in the alternative, and would apply only if the first claim was not allowed; 3) breach of contract (Aysennes); and bailment (Aysennes). Somewhat bizarrely IMHO, the trial court dismissed 1 and 2 on a motion to dismiss.
Justice Cook (who dissented on the Wrongful Death claim) would have allowed the negligence and wantonness claims to proceed. He aptly characterized the defendants' argument that they weren't liable under either theory 1 or 2 as producing a Catch-22 for the plaintiffs.
As far as waiving claims, I'm not a practicing lawyer, let alone a practicing AL one. But I think you can waive the claims (this brief discussion in terms of high risk activities suggests waivers work except for gross negligence - https://www.garybrucelaw.com/personal-injury/the-importance-of-holding-businesses-accountable-examining-waiver-enforcement-in-georgia-and-alabama/ ). Arguably what happened in LePage might count as gross negligence - I am baffled that basic precautions like a lock on the door and a lock on the freezer weren't taken - but we don't know much about the facts since the cases were dismissed very early.
BTW, the oral argument in the case (2 hours!) is very good (both sides) and is online: https://www.youtube.com/watch?v=L08KGhNSDME
Thanks and you may be right re: waiver.
Re: listening I still have SCOTUS audio to get through but if I ever do I'll listen.
Given that he has said that the "process is the punishment" wrt Title IX SA investigations, I think he would be inclined to grant near-blanket immunity from suit.
Agreed process can be punishment. But at the same time litigation is important. First it helps distributional issues. Second it helps markets with non iterative players.
The key is dismissing bad lawsuits quickly (eg arbitration) and limiting the scope of things subject to suit (eg hurt feelings not justiciable; broken contract or accident justiciable)
Just to explain why the coverage of this decision was genuinely hysterical let me note the following:
1) Quite a few states allow for wrongful death suits when someone negligently causes a woman to lose a pregnancy many at anytime after conception --including blue states like IL.
2) Letting wrongful death statutes cover unborn children is a reasonable policy choice even if you are deeply pro-choice since otherwise pregnant couples who have suffered a very real loss do to someone else's negligence wouldn't have any recourse, e.g., say your doc doesn't bother to ask if you are pregnant before giving you a medication that causes you to lose your child.
3) Once you say that the wrongful death statute covers a fetus at any point after conception it's a totally reasonable interpretation to think it covers said fetus inside or outside the womb. Indeed, it would be weird to treat them differently absent wording in the law to suggest doing so.
4) So judges in AL just reasonably applied an existing law to a novel circumstance. It didn't result in good policy but that's not the judge's job. The legislature saw that the existing law was broken and fixed it.
At no point was there any suggestion (except maybe in the batshit concurrence by one crazy judge) that this implied anything about the status of a fetus under other laws like murder. This was just the court and legislature both doing their job.
I am in agreement halfway through point #4. This was a straightforward case of statutory interpretation - as the majority opinion put it, the issue was whether there was an unwritten exception to the law for extra-utero embryos. Being a state that takes textualism pretty seriously, it was easy for the AL SCT to find there was not.
I don't agree that it wasn't good policy. Tort suits for negligently causing the wrongful death of another (or other losses) aren't bad policy - the IVF industry has, according to industry surveys, quite a few problems with negligence - using the wrong solution, using equipment that malfunctions, using outdated equipment, not having alarms for when equipment malfunctions. These make up a relatively small number of cases compared to the total number of embryos created and/or in storage, but a few wrongful death verdicts would likely incentivize greater degrees of care. Since at least some of the reported cases in which negligence or worse caused the destruction of embryos, that seems like a reasonably good outcome. Indeed it seems like a key function of tort law to incentivize people to behave non-negligently. While there are certainly problems with current tort law, the few facts we know about the AL case suggest that the degree of negligence by the clinic was pretty huge - the problem could have presumably been prevented by a lock on the door to the storage room or on the freezer or on the basic kind of facility access control that hospitals, pharmacies, etc. all routinely provide.
Honestly, I wonder why there aren't IVF centers that have payment plans based on success -- though maybe patients have to get their PCP or insurance or whatever to certify they haven't already tried elsewhere.
I have a family member who has successfully had a donor embryo become a child and is working on #2. She's worked with 2 IVF centers, one successful and one not. There is considerable difference between those two (differences to which we attribute the success with one and the failure with the other, at least in part). Payment for both is cash up front (there are payment plans but the payments are all in advance of the procedure, although there is a fair bit of lead in time to prepare for the implantation during which payments can be made while you're getting meds, etc.). It isn't cheap and insurance coverage is can be hard to come by.
The issue isn't whether you can hold the IVF clinic liable, you could presumably sue under a normal non-wrongful death property theory, but whether you can contract away that right in your agreement with the IVF center. I believe that usually it's considered against public policy to be able to waive a wrongful death tort while your agreement with the IVF clinic could wave that on a pure destruction of property theory.
Ultimately, there is some optimal non-perfect level of care that any customer wants their IVF center to take. The question is what's the ideal way to incentivize that. I don't think this kind of law is particularly helpful because it mostly imposes really large potential liability in rare circumstances (when a thief breaks in so you actually learn about it rather than just being told sorry those cells aren't viable anymore or whatever vague misdirection).
The primary concern for 99% of customers isn't the IVF center having some crazed patient break in but them having procedures that maximize the chances things -- stuff that isn't really affected by this.
I'm not with Bryan in just assuming all markets are efficient and transaction costs 0 but I fear pushing more of the cost onto relatively uncommon concerns rather than . No, I don't have a good idea how to let people know about the quality of their IVF provider but I don't think wrongful death suits are a good mechanism.
I'm not sure that it matters what the primary concern is for IVF customers - I suspect that if asked, most of them (like virtually all consumers of any medical procedure) would say they highly valued non-negligent behavior. And unfortunately negligence in IVF - according to industry reports - isn't so rare that it can be dismissed easily. There have been some significant equipment failures where relatively trivial cost alarm systems would likely have prevented the problem. Exactly what the right tort remedies are in cases of negligence (perhaps caps on punitive damages, etc. may make sense in some cases) but - based only on the very little we know about the AL clinic - it seems to me that a really big liability award might be justified since the cost of preventing the problem (door locks, freezer locks) is pretty trivial next to the harm caused. There's so much that we don't know about what happened, but that's what discovery is for.
In fact a problem is that under AL law, at least according the the trial court, which dismissed the plaintiffs' negligence and wantonness claims which were pled in the alternative to the Wrongful Death Act claims, was that they were barred "by Alabama's longstanding prohibition on the recovery of compensatory damages for the loss of human life." (quoting the AL SCT). (The AL SCT did not reach this issue, since it allowed the Wrongful Death Act claims.) In this case, therefore, the only remedy the parents have for the loss of the embryos is the Wrongful Death Act. Immunizing medical providers for their negligent acts strikes me as creating bad incentives.
That's interesting re: the alternative but I think in any situation like this we need to weigh the extra costs imposed against the benefits.
If there was a well defined notion of what constituted neglicence here I'd be more sympathetic but absent this law I imagine insurance is covering the risks that a court will hold that merely having X backup power system is negligent because many clinics in fact use an even more protective system.
Especially in medicine there is a tendency for these laws to, in practice, force all clinics to converge on some standard system which essentially prevents offering cheaper options (and often in reality the system converged on isn't safer it's just a standard offered by a big vendor). Not to mention actively discouraging saving any information that could be used to prove liability.
I don't want an IVF clinic to attempt to implant embryos that likely will fail because they've gotten too warn because they all stripped off any permanent temperature logging to prevent lawsuits from succeeding.
I'd rather avoid developing a precedent here just based on pure judicial analogy that can't really weigh the likely incentives and wait for the legislature to tailor specific regulations in this area as needed.
One thing I learned from the ruling is that the judge considered the fact that legislation was going to be necessary to handle cases involving "artificial wombs" which are no doubt coming in the near future.
Isn't the hysteria more over the fact that our minoritarian reactionary SC will leverage this or similar cases to continue ratcheting up the backwards far right morals they enforce through judicial legislation?
Isn't the hysteria more over the fact that our minoritarian reactionary SC will leverage this or similar cases to continue ratcheting up the backwards far right morals they enforce through judicial legislation?
Investigating and reporting on consumer protection issues is what turned John Stossel into a libertarian. He started out as a Ralph Nader-style leftie. But he came to realize that market competition is the only real consumer-protection mechanism.
“Anything that reduces costs increases supply, anything that increases supply reduces prices, and anything that reduces prices helps consumers”
Unless of course like virtually every other branch of medicine there are huge or impassable barriers to entry. Then it’s not clear this will do anything at all to reduce costs. It’d be like if I absolve hospitals of all tort liability but don’t allow anyone else to do what hospitals do
I think this is accurate.
Furthermore, isn't the cost of IVF drugs is the largest component of total costs?
The term "competitive industry" is doing a lot of work in the main argument.
And consumer protections, such as they are, are actually quite minimal. For example, theres generally no refunds for partial treatment and then backing off.
I get that consumer protections are a favorite hobby horse, but this ain't it Professor.
Abortion is never going to be popular, even when its supported by a majority people still don't feel good about it.
But IVF is pretty popular, so there is a desire to link aAbortion with IVF.
https://www.graphsaboutreligion.com/p/how-do-americans-feel-about-in-vitro
The problem is there isn't much of a link.
Only about 12% of the population opposes IVF. Even amongst the hardest cored abortion opposers that think it's wrong in all cases, only 16% of those people think IVF is wrong in all cases.
This was a non-issue blown up for a new cycle, and it's said that some women in Alabama had to suffer awhile for a news cycle. I also feel bad for people that may lose their embryos due to future clinic negligence.
That's a lot of Catholics who are not conforming to the teachings of the church. It's crazy that there are Catholics who support abortion so it doesn't surprise me howany support IVF dispite the Magisterium being Crystal Clear that IVF is Prohibited under Canon Law and grounds for Excommunication
If Caplan's argument holds, IVF costs in Alabama will fall so far eventually that the state will become a magnet (worldwide?) for customers seeking cheap IVF. This SHOULD become noticeable over time. Can invest in the (Alabama) industry?
Not sure about Caplan’s argument that government granted liability shields as good because they lower costs. I suspect overall lower costs and better quality by shifting away from regulation toward more reliance on tort law to compensate consumers for actual damages caused by corporate negligence or malfeasance. The recent vaxx debacle is a case in point.