"Top of the Lake" may Sink as a Procedural, but Look Beneath the Surface

A couple of weeks ago, BioNews invited me to review Top of the Lake; this is the version I submitted there, free - for better or worse - of editorial cuts.

There's a moment in the final episode of this second series of Jane Campion's Top of the Lake where Nicole Kidman's character Julia reminds Elizabeth Moss's character Robin, a policewoman and our protagonist, that she, Julia, is the 'real mother' of Mary (Alice Englert), the troubled and endangered young woman at the centre of the drama. Mary is adopted: Julia raised her, whereas Robin merely gestated her. An argument about exactly what it means to be a mother is not only important in the relationship between Robin and Julia: it is key to the main plot of the drama.

A body has been found washed up on a Sydney beach, and is discovered to be that of a Thai woman working in one of Sydney's legal brothels. The dead woman was pregnant when she died, but the baby is not genetically related to her; episode 2 ends with Robin's realisation that the dead woman was acting as a surrogate. What follows is a story that weaves together the rather murky worlds of the legalised sex trade and commercial surrogacy, which is illegal under New South Wales law.

Hands up if you shouldn't be working this case!

Now, it’s worth interjecting at this stage with the observation that, if there’s one thing we learn from Top of the Lake, it’s that Australian police have some very sloppy procedures and conflict-of-interest regulations. Gwendoline Christie plays Miranda, with whom Robin is partnered in the investigation; Miranda is not only having an affair with her boss, but is also trying to have a baby by surrogacy with him. Worried that the foetus taken from the dead woman might be her own, Miranda has a bit of a barney at the office of the clinic that she patronised (matronised?). This strikes me as the sort of thing that might see a real police officer removed from a case, at the very least; but nothing at all is mentioned about it. Police officers having affairs with each other? I’m sure that happens. Police officers engaging surrogacy services? Likewise. Police officers investigating a case that straddles the boundary between legal and illegal surrogacy, at the behest of a commanding officer with whom they are trying to start a family by means of a legally-iffy surrogacy service? Is there no oversight here? At the same time, via Puss, the none-more-sleazy pimp played by David Dencik who has something to do with the illegal surrogacy racket and with whom Mary is besotted, the story is also very personal for Robin – just as was the story in the first series of Top of the Lake. Again: should she really be working on this case?

Maybe there is method in writer/ director Jane Campion’s plotting. There is a good point to be made about how our attempts to separate the private/ personal and the public/ political can only ever be partial, and that it’s often in women’s lives that we see the intersection most clearly. But there’s also a risk here of Robin becoming a slightly rough-at-the-edges Miss Marple: someone around whom Bad Things keep happening, and with whom you probably wouldn’t want to spend too long in a country house. Whether a third series of TotL would be possible without characters becoming mere ciphers for political points is unclear.

Admittedly, it’s a bit early to worry about the plausibility of a programme that might not ever be made; and the implausibilities of this series (or what one hopes, for the sake of effective policing in Australia, are implausibilities) ought not to detain us too long. For there are deep and troubling questions that the series raises.

Charlie Gard: An Ethical Analysis of a Legal non-Problem

(This is an extended version of a post that originally appeared at EJIL: Talk!)

For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday.

The way this case has played out has not been pretty. Elements of the American media (this piece is one among many) and the political right wing used it to launch attacks on single-payer healthcare systems:

Our hearts weep for #CharlieGard Our prayers are w/ him. Pls read & ask WHY govt should have power to decide who lives & dies. It's wrong. https://t.co/MsvoJBqJyO

— Ted Cruz (@tedcruz) July 24, 2017

Nigel Farage weighed in, complaining about the state taking away parental rights:

UK medical establishment closed ranks on #CharlieGard's parents & the state took away their rights. Change required. What a total disgrace. pic.twitter.com/TRBWWYTwJb

— Nigel Farage (@Nigel_Farage) July 24, 2017

From the left, Giles Fraser wrote that the case was being dealt with too rationally. None of these claims is justified, and many left-leaning people have been surprised to find themselves in agreement with Melanie Phillips on this matter.

Legally, the case was very straightforward.

Law Changes and Slippery Slopes

(Cross-posted from the other place)

Apparently, there was a TV programme in Australia the other day in which a there was a discussion of assisted dying.  It got reported in The Guardian, largely on the basis that an 81-year-old audience member kept calling Margaret Somerville "darling" and then got mildly sweary.  I've only seen those clips from the programme that are linked in the Graun's report, so I'm not going to comment on the tone of the debate in particular.  Rather, I'm interested in one of the responses to the programme, from Xavier Symons, writing in The Conversation.

Symons takes the opportunity to unpick the idea of a slippery slope argument - in this case, the claim that allowing some forms of assisted dying will commit us to allowing... well, that's open-ended, but it's sufficient to say that it'd be terrible.  We'd want to avoid terrible things; therefore, the argument goes, we shouldn't allow any of it.  This is well-worn stuff in the seminar room, but it's a mode of argument that refuses to die.  Quite correctly, Symons points out that

there is a need for empirical evidence or sound inferential reasoning to support the claim that event B will necessarily (or probably) follow on from event A.  Without this evidence, the argument is invalid. I can’t just claim, for example, that the legalisation of medicinal marijuana leads to the legalisation of ice - I need to show some empirical or logical connection between the two.

So far, so standard.  (I'd say "unsound" rather than "invalid", because the validity of an argument doesn't depend on its evidence - or, at least, not in the same way; but that's a small matter.)  He then makes another move, which is a bit more interesting:

But (and it’s a big but) there is such a thing as a good and valid slippery slope argument.  A good slippery slope argument demonstrates a causal or probable relationship between event A and B, such that event B can legitimately be expected to occur if event A is allowed to occur. [...] There are, nevertheless, compelling empirical and logical slippery slope arguments available to defend more modest claims about the “normalisation” of assisted dying.

Is this correct?

Why India? Why Brits?

Cross-posted from the other blog.

Julie Bindel had a piece in The Guardian the other day about India's surrogate mothers.  It makes for pretty grim reading.  Even if the surrogates are paid, and are paid more than they might otherwise have earned, there's still a range of problems that the piece makes clear.

For one thing, the background of the surrogates is an important factor.  Bindel writes that

[s]urrogates are paid about £4,500 to rent their wombs at this particular clinic, a huge amount in a country where, in 2012, average monthly earnings stood at $215.

It's tempting, at first glance, to look at the opportunity to be a surrogate as a good thing in this context: these women are earning, by comparative standards, good money.  But, of course, you have to keep in mind that the standard is comparative.  If your choice is between doing something you wouldn't otherwise do and penury, doing the thing you wouldn't otherwise do looks like the better option.  But "better option" doesn't imply "good option".  So there's more to be said there; more questions to be asked.  Choosing x over y because y is more awful doesn't mean that x isn't.  It might be a good thing; but it might not be.  There might be economic - structural - coercion.  Choosing to become a surrogate might be a symptom of there being no better alternative.

A related question is this: are the women really making a free choice in offering their reproductive labour even assuming that the terms are economically just?  Possibly not:

I have heard several stories of women being forced or coerced into surrogacy by husbands or even pimps, and ask Mehta if she is aware of this happening.  “Without the husbands’ [of the surrogates] consent we don’t do surrogacy."

Note (a) the non-denial, and (b) the tacit acceptance that it's the husband's decision anyway.  That's not good.

(In a wholly different context, I've recently been reading David Luban's Lawyers and Justice, and - in a discussion about lawyers cross-examining complainants in rape cases, he makes this point:

([H]ere we have two people who are confronted by powerful institutions from which protection is needed.  The defendant is confronted by the state [that is: in any criminal trial, the defendant does need protection from the power of the state - IB], but the victim is confronted by the millennia-long cultural tradition of patriarchy, which makes the cliché that the victim is on trial true.  From the point of view of classical liberalism, according to which the significant enemy is the state, this cannot matter. But from the point of view of the progressive correction of classical liberalism, any powerful social institution is a threat, including diffuse yet tangible institutions such as patriarchy. (p 151)

(The sentiment would seem to apply here.  A view of human agency that sees liberty as being mainly or only about avoiding state interference is likely to miss all kinds of much more subtle, insidious pressures that are liberty-limiting.  Economic factors are such pressures.  The idea of the wife as property is another.)

I do wonder if readers of this blog might help out with answering one more question, though. One of the startling claims is that

[a]pproximately 12,000 foreigners come to India each year to hire surrogates, many of them from the UK.

I don't know how many "many" is, but let's take as read that it's more than none.  It's a statistic that raises a question for Ophelia Benson over at Butterflies and Wheels:

Why India? Why not hire surrogates at home?
Because India has a lot of poor people, that’s why. Because the price is a fifth of what it would be at home. Because it’s a perfect setup for rich pale people to exploit very poor brown women.

I don't think that that's quite got it.  As I commented on Ophelia's piece, this wouldn’t easily explain the UK factor.  As the article makes clear, commercial surrogacy is illegal here; surrogates are allowed only to recoup reasonable expenses.  Surrogacyuk.org suggests £7000 – £15000 as a guide for the “price” (I know I shouldn't use that word, but you know what I mean) in the UK; but if Indian surrogates are paid £4500, and the clinic is still making up to £18000 on the transaction (assuming I’ve not misread the article), the Indian market is likely to be more expensive for commissioners, even without the cost of travelling to India to begin with.

So why do Brits use Indian surrogates?

Here's a hypothesis.  In the UK, surrogacy arrangements aren’t enforceable, the woman who gives birth is automatically recognised as the mother, and a Parental Order is required for the commissioning mother/ couple to be legally recognised as having parental status.  I don’t know what the legal niceties are in India, but my guess is that that side of things is probably a bit easier to deal with.  After all, if the procedure there is as free-wheeling as Bindel suggests, keeping track of exactly who gave birth to whom and with whose eggs isn’t going to be foolproof.

Is that it?  Is there any other reason why people from the UK might commission an Indian surrogate mother?

Autism, Mental Illness, Euthanasia and the WaPo

(Cross-posted from the other blog.)

There was a piece in the Washington Post the other day with a striking headline: Where the Prescription for Autism can be Death.

Normally, if we're saying that the prescription for x is y, we mean to say that y is being suggested as a treatment for x. Painkillers are the prescription for a bad back, a steroid cream the prescription for eczema, and so on. Even if you find that phrasing a bit clunky, "prescription" implies the recommendation of a medical expert. On that basis, the implication here is that somewhere in the world, doctors are seeing patients, diagnosing autism, and saying, "I wonder if the best thing would be to kill you". That would be Quite a Big Deal.

The place in question is Holland. But a quick look at the article shows - surprise, surprise - nothing of what's hinted at in the headline. Here's the opening few sentences, edited slightly for formatting:

In early childhood, the Dutch psychiatric patient known as 2014-77 suffered neglect and abuse. When he was about 10, doctors diagnosed him with autism. For approximately two decades thereafter, he was in and out of treatment and made repeated suicide attempts. He suffered terribly, doctors later observed, from his inability to form relationships: “He responded to matters in a spontaneous and intense, sometimes even extreme, way. This led to problems.”
A few years ago, 2014-77 asked a psychiatrist to end his life. In the Netherlands, doctors may perform euthanasia — not only for terminal physical illness but also upon the “voluntary and well-considered” request of those suffering “unbearably” from incurable mental conditions.
The doctor declined, citing his belief that the case was treatable, as well as his own moral qualms. But he did transmit the request to colleagues, as Dutch norms require. They treated 2014-77 for one more year, determined his case was, indeed, hopeless and, in due course, administered a fatal dose of drugs. Thus did a man in his 30s whose only diagnosis was autism become one of 110 people to be euthanized for mental disorders in the Netherlands between 2011 and 2014.

So, then, it's a story about a man, who happened to be autistic, and who asked a psychiatrist for euthanasia. After a little to-ing and fro-ing, that request was granted. There is no reason to believe that this was a case of death being prescribed for autism. It's just that he happened to be autistic and to want to die, and a prescription for assistance was provided. Phrasing is important.
Dutch law on assisted dying is famously liberal; in considering the permissibility of euthanasia for psychiatric as well as somatic illnesses, it is in the minority of the minority of jurisdictions that consider the permissibility of any euthanasia. I have addressed the question of psychological suffering in relation to euthanasia elsewhere, and shan't rehearse the details here; suffice it to say, I don't see any reason in particular to think that mental illness and physical illness should be treated all that differently in principle:

Book Release: Pioneering Healthcare Law

Pioneering Healthcare Law, a festschrift for Margot Brazier, was published last week.  Yes, it costs £95, but we already knew that academic publishing is deeply dysfunctional.

And this volume does have all kinds of insightful contributions to important debates in medical law, from all kinds of insightful and important people.

It's also got a chapter by me and Imogen Jones, which is much more of a jeu d'esprit (or at least aspires to be).  So that's nice.

Buy it here.