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Recent Developments in Health Law: California Limits Egg Donor Compensation in Privately-Funded Research

Published online by Cambridge University Press:  01 January 2021

Abstract

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JLME Column
Copyright
Copyright © American Society of Law, Medicine and Ethics 2007

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Footnotes

The American Journal of Law & Medicine has been tracking and contributing to the development of health law since its inception at Boston University School of Law in 1975. The Journal publishes articles authored by professors, attorneys, physicians, and other health-care professionals on subjects ranging from health law and policy to the legal, ethical, and economic aspects of medical practice, research, and education.

The Harvard Law & Health Care Society is a student-operated health law organization at Harvard University Law School. In addition to contributing to this column, the Harvard Law & Health Care Society also hosts speakers from private practice and academia, presents career panels, and promotes interdisciplinary dialogue with other Harvard University graduate schools.

References

2006 Cal. ALS 483, §125355 (2006). SB1260 also sets standards to increase the effectiveness of informed consent and to decrease potential conflicts of interest that may adversely affect donors.Google Scholar
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2006 Cal. ALS 483, §125355. SB1260 had originally included a prohibition on reimbursement of lost wages, a prohibition designed to protect against inequities between low- and high-income donors. (See “Ortiz Measure Stripped of Ban on Reimbursement of Lost Wages,” California Stem Cell Report, July 22, 2006, available at <http://californiastemcellreport.blogspot.com/2006/07/ortiz-measurestripped-of-ban-on.html> (last visited January 4, 2007). With the removal of the explicit mention of wages, SB1260 has the potential to be interpreted to permit reimbursement of lost wages just as CIRM-funded research has been. See “The Wages of Eggs,” California Stem Cell Report, February 26, 2006, available at <http://californiastemcellreport.blogspot.com/2006/02/wages-of-eggs.html> (last visited January 4, 2007).+(last+visited+January+4,+2007).+With+the+removal+of+the+explicit+mention+of+wages,+SB1260+has+the+potential+to+be+interpreted+to+permit+reimbursement+of+lost+wages+just+as+CIRM-funded+research+has+been.+See+“The+Wages+of+Eggs,”+California+Stem+Cell+Report,+February+26,+2006,+available+at++(last+visited+January+4,+2007).>Google Scholar
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Id. at 7. The guidelines provide that the oral or written description of the test should include “an explanation of HIV infection and the meanings of positive and negative test results, and the patient should be offered an opportunity to ask questions and decline testing.” Id. at 7–8. The guidelines “strongly encourage” prevention counseling for persons at high risk for HIV, but the counseling “should not have to be linked to HIV testing.” Id. at 8.Google Scholar
Id. at 2. Despite these articulated objectives, the guidelines recommend against prevention counseling and do not address how patients will be linked to either clinical or prevention services.Google Scholar
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After protease inhibitors, a new class of antiretroviral drugs, were approved by the Food and Drug Administration in 1995, the media published reports of HIV patients “with no measurable trace of the virus” in their blood, and Newsweek magazine featured a cover story entitled, “The End of AIDS?” Though scientists later determined that the virus cannot be fully eradicated and that controlling HIV requires lifetime use of medications with dangerous side effects, HAART changed the course of the disease. See http://kaisernetwork.org, Kaiser Daily HIV/AIDS Reports, “The 20th Anniversary” (June 8, 2001), available at <http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=5073> (last visited January 8, 2007).+(last+visited+January+8,+2007).>Google Scholar
Accurate HIV screening and prevention counseling requires all clinicians to engage in candid, and sometimes uncomfortable, discussions about drug use and sexual behavior with patients who may not traditionally seem “at risk.”17. Id. at 4.Google Scholar
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Those who call for an end to AIDS exceptionalism argue that HIV tests and cancer screens should be treated identically, because both are medical problems that can be treated; people with HIV do not suffer significant social consequences, and therefore, do not need to be informed of such consequences through special, written informed consent procedures. Civil libertarians argue that people with HIV suffer unique stigma not faced by people with cancer, which are not adequately mitigated by current antidiscrimination laws, and therefore, the extra consent and counseling requirements remain justified.Google Scholar
42 U.S.C. §12101–213 (2000). The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. Id.Google Scholar
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Smith, S., “State Requires Doctors to Identify HIV Patients,” Boston Globe, November 15, 2006. The debate over whether states are required to report cases of HIV by full names rather than by codes is another aspect of the argument over “AIDS exceptionalism,” with proponents claiming that name based reporting is essential for epidemiological purposes, and critics claiming that the practice is unnecessary and dissuades some people from being tested out of concern for their confidentiality. Id.Google Scholar
See National HIV/AIDS Clinicians' Consultation Center, supra note 36; Hodge, supra note 13.Google Scholar
The new guidelines recommend that, where state statutes or regulations conflict with the guidelines, “jurisdictions should consider strategies to best implement these recommendations within current parameters and consider steps to resolve conflicts with these recommendations.” Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 13.Google Scholar
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