Global Medical Cultures and Law

Speakers and Abstracts

::Keynote Dialogue

"Intellectual Property, Debt, and Traditional Knowledge"

MADHAVI SUNDER  Law, University of California Davis

CHIDI OGUAMANAM  Law, University of Ottawa

::Panelists (with pre-circulated papers)

ROSEMARY COOMBE  Law, Communication and Culture, York University

"The Future and Frontiers of Culturalized Properties in the Global South"

KAUSHIK SUNDER RAJAN  Anthropology, University of Chicago

"Constitutional Values: The Trials of Gleevec and Judicialized Politics"


::Presenters

BRIDIE ANDREWS  History, Bentley University

"Western Understandings of Dang gui: Identification, Extraction, and Regulation"

Dang gui 當歸 / 当归 is a popular Chinese medicinal herb whose use is described in Chinese texts since at least the sixth century AD. It is one of the most widely-used Chinese herbs by quantity. It is also sold in the West, and has been used as the raw material for the creation of pharmaceutical extracts. This paper will use dang gui as a vehicle for examining three activities emblematic of the “contact zone” between modern scientists and officials, and traditional medicinals.

  1. Taxonomic identification. Generally identified in western literature as Angelica sinensis, the taxonomic identity of dang gui is far from straightforward. Careful scrutiny reveals that the adoption in China of Linnean binomial nomenclature has failed to create a 1:1 correspondence between name and plant. This paper will explore the consequences of the coexistence of multiple taxonomic epistemologies for this particular herbal drug, and by extension, for modern scientific attempts to impose objective order on more functional knowledge systems generally.
  2. Appropriation and extraction. Dang gui is often used in East Asia in combination with other herbs to regulate menstruation. Accounts of this use by missionary doctors from Europe prompted the Merck company of Germany to create a fluid extract of the single herb, later also sold in dried tablet form, known as “Eumenol” and marketed across eastern Europe as a treatment for women’s menstrual problems between 1899 and 1946. Without a clear indication of the taxonomic identity of the dang gui used to make the extracts, this episode suggests the importance of networks of trade and trust in the creation of “modern” drugs from non-native herbal extracts.

Evidence-based regulation. In 2012, the European Medicines Agency (EMA) issued a report on Angelica sinensis root in response to Directive 2001/83/EC, which had established criteria for the safe sale and distribution of traditional herbs within the European Union. In order for Angelica sinensis to receive approval for medicinal use, evidence of a history of well-established use and safe traditional use within the EU had to be provided. In spite of the long history of “Eumenol”, the EMA found that Angelica sinensis failed to meet the objective standards for approval, and is therefore not allowed in legal European herbal practice today. From this example, we investigate how standards of medicinal safety and efficacy for herbs represent an important barrier to the transfer of traditional drugs from one culture to another.

MARÍA CARRANZA INCIENSA, University of Costa Rica  STEVEN PALMER History, University of Windsor

"Enabling Restrictions: Law, Medicine, and Female Sterilization in Costa Rica"

From 1970 to the 1990s Costa Rica was one of the countries with the highest female sterilization rates in the world, yet the medical practice of sterilization was illegal except in very restricted cases.  The paper explores this apparent paradox, focusing on the way the medical profession, in the absence of a more expansive law, and in order to deal with a draconian penal code prohibition on sterilization, enacted its own restrictions and regulations on female sterilization.  Far from suppressing sterilization or even controlling it, the restrictions shaped a social practice that enjoyed wide legitimacy while also expanding access to it.  The Costa Rican case is particularly illustrative because the process was played out, and sterilizations carried out, in the highly visible context of a social security system of health care with full national coverage that is unique in Latin America.  We also situate this case historically, to assess whether it is part of a longer-term and wider dynamic characterizing medicine and the law.  Since when, in what domains, and to what degree has the Costa Rican medical profession taken this approach to a “calculated abdication” by the state of its legislative role over changing health practices, a situation in which the license afforded professional expertise, and the consent of the public, have provided a framework allowing technically illegal practices to enjoy an extraordinary, if precarious, legality?

 PAUL JOHNSON History, University of Michigan

"Possessed Persons and Legal Persons in Brazil"

In the zones of the Americas where plantation slavery formed the economic base over three centuries, roughly from 1550-1850, Afro-Atlantic religious practices took shape as independent traditions within and alongside colonial Christianities. These traditions often included ritual events evoking collective states which colonial officials, then criminologists and doctors, and finally psychiatrists and anthropologists, all described as “possession” by analogy with Christian demonism. Rituals cultivating spirit-possession events were rigorously policed and legally repressed. In the history of European encounters with peoples of Africa and the Americas, spirit-possessed action came to be viewed as the opposite of individual action—accountable, contract-worthy, transparent and properly civil action—in early modern social theories that became the template for political states in the Americas. Even more: the figure of “the possessed” helped define the proper sort of individual in relation to which civil participation in emergent states was imagined at all.

“Citizens” needed to be free, autonomous, rational individuals with durable identities; only such would be capable of making, guaranteeing and fulfilling trustworthy contracts that nation-states founded on principles of private property would require. Afro-Atlantic practices that appeared to generate states of possession were regarded as socially and politically dangerous; at best, productive of the worst form of shifty, intemperate and impermanent persons, at worst sedition or revolution. My paper traces this arc in Brazil, juxtaposing a legal case of possession’s prosecution in the 1870s with later cases in the twentieth century when “spirit testimonies” have not only been tolerated but acquired a partial legitimacy in court.

 STACEY LANGWICK Anthropology, Cornell University

"Troubling Rights: Therapeutic Plants, Intellectual Property, and Modern Herbalism in Tanzania"

Efforts to use intellectual property rights to protect African medicinal knowledge have consistently been complicated by the fact that African medicine is not easily translated into an object of property. In addition, “knowing” plant-based remedies in African therapeutic traditions is the dynamic interaction of moving toward, with or through plants. Knowledge is not engaged as a fixed concept that is “held” by healers or communities. The emerging herbal industry in Africa is a product of these epistemic and ontological tensions. As such, it has become a creative space in which to struggle with the social-material demands of global health and the forms of governance they structure. Situated between traditional medicine and biomedicine – drawing on both, but making no claims to the authenticity of either – modern herbal therapies play with the relationships that enable both plants themselves and knowledge of how to use them therapeutically to be constituted as property. In this paper, I account for the generative possibilities of this in-between space through the work of herbal producers in Tanzania. I pay special attention to the ways they queer boundaries between medicine and food and open up a space in which to build common cause with food sovereignty movements which take up property rights as tactics in a struggle to reconfigure the ways in which we are obligated to one another other.

 PROJIT MUKHARJI History and Sociology of Science, University of Pennsylvania

"Common Law Ayurveda: A Legal History of Indigenous Medicine in Nineteenth-Century South Asia"

A wealth of excellent historical works, such as those by Kavita Sivaramakrishnan, Rachel Berger, Joseph Alter and others, has recently documented the transformation of Ayurvedic medicine through the long nineteenth century and beyond. Most of these works agree that, unlike in colonial Africa or the Caribbean, the state in British South Asia did not actively interfere with indigenous medicine until the 1920s. While it is indeed true that the colonial state did not pass any significant legislation to criminalize, regulate or shape indigenous medicine as such, there is a significant body of judge-made common law that dealt with indigenous medicine and its practice. This legal framework strictly demarcated what was and what was not medically permissible. This legal history of indigenous medicines has been entirely neglected by the medical historians of South Asia. Once we take account of this history however, it is obvious that the state did in fact significantly transform medical practice by direct intervention. Pursuing such a legal history of indigenous medicine in the long nineteenth century therefore promises to radically re-orient our views about the colonial state and its relationship to indigenous medicine. Thus in this paper, using legal reports of cases involving indigenous medicine as well as their discussions in legal textbooks, I will describe the gradual development of this case law and analyze how it constantly framed and reframed the practice of indigenous medical practice.

 SIRI SUH Gender, Women, and Sexuality Studies, University of Minnesota

"Globalizing Reproductive Health in Senegal: The Troubled Medicalization of Abortion in an Illegal Landscape"

In 1997, the Senegalese Ministry of Health introduced post-abortion care, a new global reproductive health intervention, to the national health system.  Post-abortion care entails emergency treatment of complications of incomplete abortion followed by contraceptive services.  Conceived during the early 1990s by US reproductive rights NGOs to address the alarming public health problem of unsafe abortion in the global South, post-abortion care represents the only consensus on abortion to date in global maternal and reproductive health policy frameworks.  It is the only abortion-related health intervention supported by the US government that is compatible with anti-abortion policies such as the 1984 Mexico City Policy, also known as the ‘Global Gag Rule.’  Post-abortion care has been implemented in approximately fifty countries worldwide, with nearly half of these programs in sub-Saharan African countries with restrictive abortion laws.  In this paper, I explore the politics of introducing and practicing post-abortion care in Senegal, where the law prohibits abortion under any circumstance and the US has been the primary bilateral donor of population aid since the 1980s. Despite health officials’ efforts to routinize post-abortion care into regular obstetric practice, lingering anxieties that the intervention represents a de facto form of induced abortion have isolated post-abortion care and its related technologies from reproductive health care. Although health workers have adopted clinical and record-keeping strategies to minimize the possibility of police intervention in the maternity ward, these practices engender an institutional account of post-abortion care that suggests that the intervention primarily treats complications of miscarriage, and that induced abortion is rare.  Senegal’s post-abortion care experience suggests that while the intervention has partially transformed abortion complications into a public health matter, the legal context of abortion continues to constrain health professionals’ ability to clinically manage and accurately measure abortion, and to organize health systems according to global health principles of evidence-based, cost-effective care.