Also, negligent lawyers

In the post below, I challenged the blogosphere's prominent marriage defenders and bioethicists to explain why they aren't calling for a Missouri-style "egg and sperm" law banning the use of modified gametes. While I'm at it, I should also challenge the blogosphere's prominent lawyers, such as Jack Balkin, Eugene Volokh, Ann Althouse, Dale Carpenter, Andrew Koppelman, etc (man there are lots of them) to end their silence on this subject and offer their expert opinion. I have posted many comments over the years at their blogs, and never once has one of them replied to me that I was wrong. I think that's interesting.

When I pester them enough, they generally respond that they simply aren't interested in the subject, or haven't thought about it, which is total bullshit: they just don't want the subject to be raised yet, they think they can just ignore me and pretend that they've never been asked if conception rights are the sine qua non of marriage and if the state might have an interest in stopping same-sex conception or genetic engineering before it happens. There are students studying genetics law and reproductive law in law schools today, but lawyers are never disinterested parties. That whole lucrative, interesting field will be gone if Congress enacts the Egg and Sperm Compromise. Just like the "marriage experts" and the "bioethicists", these are people that have a vested interest in extending the controversy indefinitely and bringing us slowly down the slippery slope one expensive case at a time.

Well here is the challenge to the above law profs: explain to me where I am going wrong. Engage in a discussion here with me, tell me about how marriage and conception rights are related or not related, or whatever. Just address the damn subject already.


John Howard said...

Well, I've just sent emails to all the lawyers mentioned here alerting them to my challenge, so maybe they'll come here and respond. Let's wait in these bushes over here...

John Howard said...

Got a response from Andrew Koppelman via email. Again, he chooses to be negligent in his duties to speak to the clear key point. He claims to have an "obligation to keep his mouth shut" because he's not an expert in genetics, but that has nothing to do with it, it's entirely a question of law and rights and has nothing to do with science!

Dear John,

I haven't responded to you, because I haven't understood that we have any area of necessary disagreement. Your central concern, as I understand it, is to prevent, or at least delay, a certain kind of genetic engineering, based on what seems to me a very prudent caution about the unknown consequences of that engineering for the health of the offspring. You may be right, for all I know. The science of genetic engineering however is far outside my area of expertise, and I have an obligation as a scholar to keep my mouth shut when I don't know what I'm talking about. So I haven't taken any position on your claim, and I'm not planning to.

My silence shouldn't be construed as an evasion. It is rather a humble acknowledgement of my own limitations. (My guess is that Ann Althouse hasn't responded for similar reasons, which is why I'm copying this to her.) I don't mean to give the impression that I'm ignoring you. If you can point to some specific passage in my writing that you dispute, I'm happy to discuss it.

Andy Koppelman

Matteson said...


Why do you think that the questions you ask are divorced from the subject the address? How can someone take a justified stand on a scientific issue without any knowledge of the science involved?

He said that he agrees with you that prudence is good, but he can't agree with you explicitly because he is not versed in genetic engineering. He has, in effect, said "I agree that bad consequences are bad, but I don't know that there really are bad consequences so I'm not going to take a position."

What's wrong with that?

John Howard said...

I'm not asking him for his scientific opinion on anything. The science is irrelevant. We are talking about rights and laws, not science.

But if all I have to do is find a scientist who knows about genetic engineering and who says it would be unethical to attempt same-sex conception of germline genetic engineering, that's easy. It's also easy to find scientists who think it would be ethical though, so there is no point in getting into that game. I do think though that the scientists who think it would be ethical had that opinion before and perhaps went into genetic engineering in order to pursue their transhumanist beliefs, and so have always been blind to ethics, whereas the scientists who oppose it were more tabula rosa's on the subject and now look at it objectively.

Be that as it may, Koppelman is kopping out, pretending I asked him a scientific question and ignoring the legal questions I asked him, like I knew he would.

Here is the question for him again: does same-sex marriage require either stripping conception rights from marriage, or giving conception rights to same-sex couples? Is the fact that same-sex conception is unethical a supportable basis to prohibit same-sex marriage?

Matteson said...

John, I don't know how you're blind to this issue. You're asking him about consequences and the consequences have to do with the science, and he doesn't know about the science. If he doesn't know about the science then he can't possibly know about the consequences, can he? Do you see the problem here?

Also, why do you think that people who disagree with your opinion are not being objective while those who agree with you are objective?

Are you a real person who makes these crazy claims or are you putting on some kind of act? I'm honestly not sure anymore.

John Howard said...

Huh? I'm asking him about the legal consequences, as I just said. Here they are again (note that "is unethical" is not some sort of "scientific" fact, nor something disproved by science, it is a "natural fact" to be taken for granted in answering this question. That argument, about whether it is ethical, is a different argument):

Does same-sex marriage require either stripping conception rights from marriage, or giving conception rights to same-sex couples? Is the fact that same-sex conception is unethical a supportable basis to prohibit same-sex marriage?

John Howard said...

Also, why do you think that people who disagree with your opinion are not being objective while those who agree with you are objective?

I'm referring to scientists. My experience and intuition tell me that there are two kinds of genetic engineering scientists: those that had a political or social reason to go into science so they could pursue it, and those that went into it because they are good at chemistry and just like doing experiments and discovering things. All scientists want to serve mankind and find cures and stuff, but not all want to change mankind, and not all love chemistry and biology for its own sake. I think those two groups are fairly mutually exclusive. The people that want to change mankind are not going to be objective, they are in science to serve an agenda, they want to be eugenicists and frankensteins. The ones that don't have an agenda, that are pure scientists, trying to cure diseases and advance science, agree with me that we should not start to make babies from GE'd genes. The other ones obviously don't agree with me because that's their premise, that's why they became scientsts.

Matteson said...

"Does same-sex marriage require either stripping conception rights from marriage, or giving conception rights to same-sex couples?"

What the heck are "conception rights?" What do they have to do with marriage? Would you say that unmarried people lack a right to conceive? That's a huge claim! You seem to be a naturalist in the strongest sense of the word (natural=ethical), but correct me if I'm mistaken. If that's the case then why would you say that only marriage confers a right to conception? Marriage is a social institution. It isn't something that has existed throughout time, and it's not something exists everywhere even now. Why are rights like conception tied to it? Did all people who had children before the advent of marriage do something unethical? That's far-out.

"Is the fact that same-sex conception is unethical a supportable basis to prohibit same-sex marriage?"

Even ignoring the spurious and unsupported claim that same-sex conception is unethical, I don't see why the answer would be yes unless you think that you must be married in order to have a right to conceive, which I don't see that you have supported either.

Further, why do you think it's a natural fact that this is unethical? Is it because it is not "natural?" If that's the case then why is it ok to cure disease or wear eye glasses or shoes? None of these things are natural. Disease (or minor illness) should kill us and those of us with weak eyesight should be killed by natural forces as well. Are you ready to make that claim?

John Howard said...

"Conception rights" means being allowed to conceive, not being prohibited by a law, mainly, but also not being thwarted or diverted or perverted by coercion in general.

People should only have conception rights with someone of the other sex, because that's the only way people can conceive using unmodified gametes. Giving conception rights to same-sex couples means giving a right to use modified gametes.

This is something Koppelman agrees with me about, apparently. Maybe you can prod him to address the issue of conception rights of marriage.

Yes, I would say that unmarried people lack a right to conceive. It's a huge claim that they have a right to conceive. It has been understood for eons that fornication and adultery are crimes (capital crimes still in many places), and though we've relaxed the punishment, the legal principle remains the same: marriage is conception rights. Before there was marriage, there was no concept of conception rights, and vice versa.

I don't see why the answer would be yes unless you think that you must be married in order to have a right to conceive

No, the answer is "yes" because all marriages should be allowed to conceive together, with their own genes.

It's not unethical because it is not natural, it is unethical because of the bad effects it would have on society and the waste of resources and carbon footprint of developing something that is totally unnecessary and unwise. Plus there is the safety aspect, which applies to this form of conception and not intercourse because it is unnecessary to attempt it and it would be such an intentional attempt, and there is no natural right to attempt it.

Matteson said...

"It has been understood for eons that fornication and adultery are crimes (capital crimes still in many places), and though we've relaxed the punishment, the legal principle remains the same: marriage is conception rights."

I call bullshit on this on all counts. "Fornication and adultery" have not been crimes or even frowned upon for anything close to a single eon. (I'll ignore the fact that there is no plural for eon as it is defined as "an indefinitely long period of time") One need not go terribly far back in history to find peoples who didn't give a fig about modern sexual mores. (Reference the ancient Greeks and Romans for example.) Your historical claim is weak sauce. Also, there is currently no crime involved in fornication in any Western nation that I am aware of. You'd need to look at a theocracy to find those.

Marriage might make conception more socially acceptable, but I don't see what it has to do with conception rights at all. You say that before marriage there were no conception rights, but that doesn't imply that these people lacked a right that they should have had, only that there wasn't a concept of conception rights because it was unneeded. I'd say it's unneeded in the current day as well. You're inventing them and applying them here to suit your argument, but they don't stand up.

John Howard said...

OK, for at least half-an-eon, then;)

Seriously, whether people are allowed to conceive without being married to each other is somewhat beside the point, as is whether that has varied in history. It's the complement we need to look at - all marriages have been allowed to conceive. Exceptions to the rule of cultures prohibiting adultery and fornication do not show there were exceptions on the marriage right to conceive together, while the vast history of adherence to the rule do show that marriage granted the right to conceive together.

The important thing now is that all marriages continue to be allowed to use their own genes to conceive, as all marriages always have been. That means they need to be protected from coercion and pressure to use better genes, or the right to us their own will be rendered as meaningless as a gay man's right to be straight.

When you say conception rights are unneeded in the current day, are you saying that people should not be allowed to claim a right to use their own genes? Conception rights are very needed now, more than they ever have been.

Matteson said...

No man, I'm just saying that of course people have the right to use their own genes to conceive. You're the one that doesn't think that they should unless they're married. If two lesbians want to have a child YOU are the one that is saying that they shouldn't be allowed to use their own genes.

I'm saying that marriage has nothing to do with a right to conceive. People have a right to conceive whether they're married or not. Therefor, it's not marriage that confers a right on people, but rather something that people bring to marriage.

John Howard said...

I'm saying that marriage has nothing to do with a right to conceive. People have a right to conceive whether they're married or not. Therefor, it's not marriage that confers a right on people, but rather something that people bring to marriage.

But two women should not be allowed to use their own genes to conceive together. People should only be allowed to use their unmodified gametes, which means the should only be allowed to combine them with the other sex. All people should have one male and one female progenitor, and require a co-progenitor of the other sex to reproduce. If you want to argue that we should develop same-sex conception and allow people to attempt it, the burden of explaining why that should be done should be on you.

We shouldn't equate the right to conceive with someone of the same sex to the right to conceive with someone of the other sex.

Note that I haven't brought up marriage yet, in this comment. Our disagreement starts back here, so talk of marriage only confuses the issue.

What I am saying is, first of all, ban modified gametes and same-sex conception. Then, affirm that all marriages are allowed to conceive with their own genes - do not imply that man-woman marriages have the same rights that a same-sex couple does.

Matteson said...

You're making what we generally call a category mistake. Specifically, it's the Naturalistic Fallacy. You're moving from an "is" (it takes two people to make another person) and moving right to an "ought" (it ought to take two people to make another person).

This just isn't a justified move. If you want to make the claim that "is implies ought" then you carry the burden of proof.

You need to come up with a good moral reason not to give same-sex couples the same reasons as heterosexual couples. If you don't then you really just sound like a bigot.

John Howard said...

Well, I think that "is" is a valid argument for "ought". When I come home every day, I don't rearrange all the furniture, I just sit down and turn on the TV. Rearranging the furniture would be a pain in the ass. Sometimes it's wise to rearrange the furniture, but the burden of proof is on convincing me to rearrange the furniture. There has to be something wrong with the current setup, because rearranging has a high cost of expended energy and time, might cause lasting pain, and might not leave me with an arrangement any better, and I might even wind up with an arrangement that doesn't work at all. So, as to burden of proof, I think it is on the idea that "ought" is not what "is". There is, after all, a huge cost to developing same-sex conception and genetic engineering. That can't be just ignored. It could be spent on health care for existing people, but you want to divert it away from them, to...who?

Secondly, I think it is better that we are each only one of two sexes and require a second person of the other sex to cooperate with us to produce a new person, who will be a combination of each of us, and only one sex also. If we were just starting from scratch, I would recommend two complimentary sexes and sexual reproduction, because it increases the likelihood that reproducing would be a good idea if two people have to agree. And by requiring that second person to be of the other sex, a complementary necessary other that completes us and them together, we learn to love, we aren't all-powerful and need to be social and intelligent and nice. I think that need for complementarity is a good thing that I would design into the system. Asexual species are not very advanced, they are like amoebas and paramecium. Sexual reproduction, especially cognizant consensual sexual reproduction, is the key to the great leap in complexity in evolution.

Matteson said...

You're just being obtuse. Let's pretend that for some reason your example applied to the case at hand and is somehow morally important.

What you are suggesting is that the way your livingroom is arranged is the way that it ought to be arranged and that any changes to it would be immoral unless proven not. Thus, if I wanted to come in and change your livingroom I'd need to convince you that it would be worth the effort. This is perfectly reasonable, but it doesn't have anything to do with the case at hand.

What you are really talking about is this: You find me trying to rearrange my own living room and you come in with the police and stop me. Your reason is that what I'm doing is immoral because the room was just fine as it was. I have to prove to you that the change that I want to effect is morally justified in some way, or you'll have the cops restrain me.

Do you see the HUGE difference here? You want to restrain liberties based on your naturalist idea that is=ought. Perhaps I'm just a little too libertarian, but I strongly believe that if you are going to try to restrain my liberties then you need to have a damn good reason for doing so.

Your reasoning is only the statement of a preference. Sure, it is the case that men and women can create babies together and that most of the time this involves consent. Your claim that the requirement of having two sexes enforces consent somehow is absurd and unfounded. You see something icky about two boys making a baby together and you think that it is immoral because it is not "natural." That makes you a bigot. I'm done with you. Arguing with a bigot is a waste of time. Perhaps one day you will think over our conversation and your mind will change. Until then: Good day.

John Howard said...

The living room is a metaphor for the world, for the way people are created. We don't have separate living rooms in this metaphor, we live in the same room and share the furniture. Hey, if we lived on separate planets and you had your own human race, go ahead and change the way your planet produces people. But on this planet, you need to explain why you think we should allow people to spend so much money and force us all into a world where people are created by geneticists and are no longer the unmodified children of a man and a woman. Why should we let you spend time and money doing that, when there are so many people that need simple health care but cannot get it. People should be created equal, and everyone should have the same right to use their own genes to reproduce, without going to a lab to have them modified. I don't consider creating people from modified gametes to be a liberty held by labs, because if that were allowed it would be an end to liberty. It is a preference, and it is widely shared. The world needs to choose what sort of world we prefer to live in, and we are allowed to choose the one that preserves natural conception rights and stops eugenics, even if it means people are prohibited from doing same-sex conception. We can't let people bully us into allowing genetic engineering because we are afraid of being called bigots.

Anonymous said...

WOW John, I never realized you were so keen on healthcare issues and how our tax dollars can be better spent. I suppose your also against your wonderfully compassionate conservative president burying us in up to 4.5 TRILLION dollars, YES 4.5 TRILLION dollars in debt to secure the 2nd largest oil reserve in the middle east(iraq). Yet off you go on this tirade about how our money can be better spent on healthcare as opposed to research on SSP. Let me ask you a question Mr. Howard. Has ANY such tax dollars been spent on this research??? Right. I didn't think so. All of the research to date so far has been committed by PRIVATE institutions! Or else is being researched by far more socially progressive nations like England and Canada. Your simply another voice whining in the wilderness Mr. Howard. However, I will give you credit on one thing. By whining and bitching so loudly about this topic you are giving us exactly the platform we need to get this issue out there and finally get the ball rolling. Like your compatriots who favor "natural" marriages between male/female partners you give us ALL the impetus we need to finally move this theocratical shithole of a country into the 21st century. thanks for your time. Your good freind DA MUSCLEHIPPY!!