HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, August 27, 2014

Guest Blogger Visiting Assistant Professor Valerie Gutmann Koch: Bioethics Fact and Fiction in Lifetime’s The Lottery

VGK(Warning: this post discusses the pilot episode of the Lottery, a show that debuted on Lifetime in mid-July. If you want to be surprised by the basic plot elements of the show, perhaps hold off on reading this…).

I have a weakness for shows that feature bioethical inquiries in their plot lines. Orphan Black, on BBC America, highlights cloning and patenting of human genes. And now the Lottery is based in the not-too-distant future, where all women are infertile. Six years after the last child was born and after incredible amounts of time and money spent trying to find an infertility “cure,” scientists successfully create 100 embryos from donated gametes. So the decision must be made: who will carry these embryos? 

Just as quickly as this question is asked, it is answered. Behind closed doors, and based on purely political reasons, three individuals – the President, his chief of staff, and the head of the “Fertility Commission” – agree to hold a nation-wide lottery. The 100 women who win the lottery will each carry a single embryo to term.*

The pilot episode of this show raised wonky bioethics question after wonky bioethics question.** Like: Can women opt out of the lottery? If not, the notion of state-mandated pregnancy warrants its own blog post (if not an entire book!), just to cover the constitutional concerns alone. Aren’t the lottery “winners” really just participating in a crazy human subjects research protocol? What sort of consent process is involved? Can the egg donors really sign away all rights to their donated oocytes?

As someone who has spent a considerable amount of time the last few years engaged in considering the very realistic possibility of scarce resource allocation in a public health emergency (in my case, ventilators in a flu pandemic), the decision in the Lottery (which is obviously presented in its summary fashion for plot expediency) is incredibly troublesome from a process perspective. For example: with all the resources the state expended on trying to fertilize a human egg, why is this the first time it occurred to anyone with decision-making authority to determine an ethically and legally appropriate way to allocate the resulting embryos?

In reality, regulatory agencies (e.g., state departments of health) and advisory bodies (e.g., bioethics commissions) across the country have dedicated themselves to proactively and prudently addressing the possibility of scarce resources in a public health emergency. In fact, the government has a duty to prepare for such anticipatable emergencies. For example, New York State’s bioethics commission, the Task Force on Life and the Law, has been charged with examining ventilator allocation in a pandemic. To ensure that allocation decisions are ultimately made in a way that is fair and equitable and will provide the greatest benefit to as many patients as possible, the Task Force engaged in a multi-year process to solicit widespread public comments, critiques, and feedback, so that the resulting guidelines reflect shared public values. They drew upon the expertise of multiple workgroups and committees with special knowledge of scarce resource allocation, critical care, pediatric and neonatal medicine, ethics, law, and policy. Such outreach to experts, stakeholders, and the general public may assure familiarity and comfort with the process should a pandemic occur.

But all that outreach and planning means nothing without first establishing the goal of the chosen allocation system. In the Lottery, there is one simple goal: political power (the President is threatened by the opposition party, and the lottery is his best chance at not being recalled).

In contrast, the government and bioethics bodies should engage in strenuous goal setting exercises before deciding upon the best allocation system to meet those goals. For instance, the Task Force, after much deliberation, determined that the primary goal of its recommended clinical triage protocol was to save the most lives in the event of an influenza pandemic. Only after establishing this goal did the Task Force evaluate the various approaches to allocating ventilators (these included a first-come first serve system, relying on only physician clinical judgment, allocation based on specific categories of people (e.g., by age, occupation, etc.), and – yes – a lottery).

I’m sure that if we put our heads together, we can come up with a laundry list of alternative goals for embryo allocation in the Lottery. For example, one viable (pun intended) goal is to ensure the highest chance of success in carrying healthy babies to term.

Sure, it can be argued that the show’s cursory (or non-existent) consideration of these important issues serves the goal of entertaining viewers. We certainly shouldn’t expect hyper-realism from TV, especially from a channel that is known best for its scandalous made-for-TV movies. While real life (probably) doesn’t have the level of intrigue demonstrated in just the first episode (murder, kidnapping, deception, etc.), the show raises issues that are being addressed by regulators and advisory bodies across the country. Sometimes, realistic is boring. But I think people would watch a show that dealt with these important issues in a more profound way.

*at least the characters on the show are abiding by the current ASRM guidelines of implanting one embryo per IVF cycle.

**occasionally these questions are somewhat answered in subsequent episodes.

-Visiting Assistant Professor Valerie Gutmann Koch

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