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Moral Intuitions and Regulation of Surrogacy

A gestational surrogate in California is currently suing the man who hired her for custody of at least one of the triplets she delivered in March of this year. She is unlikely to win, but the case brings up some interesting questions about the interplay between markets, technology, and reproduction. (You can see an older discussion of the case, prior to delivery of the triplets, here).

The case is a tangle of poorly read or willfully misunderstood contracts, an unprepared (and possibly somewhat delusional) father-to-be, and the pro-life/pro-choice crowd throwing themselves in for good measure. Melissa Cook was hired by a deaf 50-year-old man who lives with his parents to gestate two babies for him, created with his sperm and donated eggs. When one of the embryos split, resulting in triplets, he asked Cook to selectively reduce the pregnancy by aborting one of the fetuses. She refused, despite the contract she signed agreeing to terminate or selectively reduce at the request of the father. The case dragged on until the termination question was solved by the birth of the triplets in March.

After reading the initial summaries of the case, the Wild West of the fertility world does seem to require some kind of intervention and every article I’ve read on the case ends with a call for more regulation. But when I stopped and really thought about it I couldn’t figure out why. Anyone can get pregnant, without a license or permit or proof of adequacy (BHL has dealt with parental licensure before). Why do our intuitions about reproduction change when there’s money or technology (or both) involved?

If we’re being reasonable, our intuitions should probably push us in the opposite direction. Fertility clients and their future children are shielded in some ways from some of the worse aspects of accidental pregnancy. Clients of surrogates have enough money to pay for the service, so they’ve already jumped two hurdles on the path to baseline decent parenting: access to resources and wanting the kids in the first place.

Then I tried thinking through what else, other than children’s best interest, might make us think intervention in fertility decisions is justified.

One obvious variable is markets. Money changing hands seems to make our moral radar go off, even if, as in the case of surrogacy, women are only being reimbursed for expenses (though due to payments for time and suffering, there seems to be some kind of payment taking place). But if it’s money changing hands, why? Why do we seem money as inherently corrupting? Especially in a case like surrogacy where money changing hands actually improves the odds of getting decent parents.

Perhaps the relevant variable is technology, but then what is it about fertility technology that makes us want to regulate something we already do all the time? Fertility clinics are already regulated for safety and efficacy, so further regulation of the ends (rather than the means) of fertility clinics seem unjustified when we don’t regulate those ends in private people’s bedrooms.

If, as I suspect, the central variable is about money exchanging hands, what is it about monetary exchange that also seems to make us want to regulate something we already do all the time?

I can think of a few answers, but am willing to entertain more.

First, we see monetary interactions as having the possibility to corrupt relationships or exploit vulnerable populations. Women, in particular, may be vulnerable to financial incentives to use their bodies in ways that may not be best for them. I think there are legitimate concerns here, but in a system like the U.S. where surrogates are likely to be healthy middle class women, the exploitation card is harder to take seriously. This is more of an empirical question anyway. And so far, the little information we have on surrogates is that they do not see themselves as exploited, even in the developing world where the risk of exploitation is highest. But there is a strong tendency in modern culture to assume women’s choices are not freely made and female vulnerability continues to be an excuse for interfering in a wide range of women’s choices.

Second, maybe we see monetary interactions as commodifying something that is natural or should come from God or that has inherent dignity. This is the Leon Kass argument, and I think it is ultimately problematic, especially in the case of surrogacy. There’s nothing inherently dignified in getting pregnant, just as there is nothing inherently undignified about infertility. Women who can get pregnant easily are worth no more or no less than those who require assistance, and their babies are equally worthy. We don’t decry the money spent on IVF, why should we decry the money spent to support surrogates? The dignity argument seems like an odd combination of our desire that pregnancy occur naturally combined with our desire that if it can’t at the very least no one should get paid for it. Neither of these desires make a lot of moral sense. The idea of the dignity of a “natural” pregnancy in this case seems like a mere extension of the naturalistic fallacy, that pregnancies that happen without intervention are more worthy of respect than pregnancies that require assistance, especially those that require another woman’s womb. (Brennan and Jaworski reject the commodification shibboleth in their book Markets Without Limits, so surrogacy would seem to be a logical extension of their thoughts there.)

Certainly in Melissa Cook’s case, one would have liked to see better screening of potential clients by the clinic and maybe better reading comprehension on the part of the surrogate involved. And my discussion here ignores real moral questions about whether a surrogate can be forced to abort a fetus she is carrying for someone else. None of this means that surrogacy is a slam dunk moral case. But there’s nothing obviously different from a case of accidental pregnancy that would require more state intervention than we provide there. And various states have already solved these problems effectively through case law that commonsensically protects surrogates while reaffirming the parenthood of the people who hire them, California most notably. So cases like Cook’s are extremely rare, which again would seem to undermine any calls for further regulation.

So what’s up? Are there other aspects of this that I’m missing? Are there legitimate reasons to regulate surrogacy, apart from basic safety regulations (assuming even these are necessary)? It is just the newness of the technology? Or the combined punch of technology and markets together?  Or maybe surrogacy is just one example of a situation in which we need to let go of some of our gut moral intuitions and recognize that in the world of markets and fertility (and maybe lots of others) such intuitions may be wrong more often than they’re right.

 

Note: Thanks to Andrew Jason Cohen and Steve Horwitz for looking over a draft of this and providing some thoughtful suggestions.

  • Ron

    Surrogacy has been around for a long time, at least as long as the story of the handmaid in book of Genesis. What’s different today is that surrogates are free to choose and contract for their services. The problem is that sometimes the surrogates are not fully informed about what they are agreeing to, or are financially desperate and therefore compelled to service rather than freely agreeing to help an infertile couple (or in this case an individual parent). Ultimately, everyone has control over their own bodies and if a surrogate changes her mind there is nothing a couple can do to stop her from continuing or terminating a pregnancy (putting aside the issue of abortion itself). If she doesn’t go through with the deal, it’s a breach of contract and she can be sued, which is exactly what happened in this case. So where’s the need for regulation? The system is working just fine.

    No regulation is needed beyond contract law — that all parties are fully informed, of sound mind, of the age of majority, that no one is coerced or compelled, and other aspects of contract law. And if something goes wrong, the courts are always open for redress.

    A major issue involved with contracts of this type, though, is that the performance of the service itself can have dramatic effects on the brain when hormones change and parental instinct takes over. This can also occur with contracts for prostitution, drugs, gambling… The effect of the performance of the contract itself can cause a party to change his/her mind after the fact, or even compromise a sound mind. In the future we will know much more about how the brain works and we’ll be able to better predict which individuals and circumstances will lend to problems. In the future, the parties would likely make this determination in advance as part of their due diligence and then decide whether to contract based on that additional information.

  • TracyW

    One obvious difference is that in most Western countries, if a woman gets pregnant what happens next is up to her. She can choose to have an abortion or to carry to term. If she carries to term then the father owes support to the child, as the right to support is with the child (eg if the mother dies and the father doesn’t take guardianship then the father still owes child support.) The father can’t force the mother to have an abortion.

    So the idea of the father of a child having a right to specify that the woman has to get an abortion conflicts with the settlement that women have the right to decide to not have abortions. It also conflicts with the position of anti-abortion groups that abortion is wrong in the first place.

    And finally, this is an area where people often change their minds once pregnancy starts
    So binding commitments don’t necessarily map to pregnancy without surrogacy.

    Generally, courts don’t enforce specific performance too. If you break a contract, typically you owe money, not to do the job. And when it gets to very intimate matters, courts are even more reluctant to specify performance. See divorce laws for another example.

    • King Goat

      Right. You might say control over the fetus is an inalienable right of the mother, it can’t be contracted away. Those making a contract contrary to this would be in the position of those who contract with minors (where the minor can hold you to the contract but not the other way around).

      • Ron

        In law, a surrogate is still bound by the contract (if it is otherwise valid), but the remedy is limited — her inalienable right to control her own body cannot be violated — but she still may be held responsible for damages. Entering into a contract with someone who doesn’t have capacity (like a minor) is different. The contract is voidable if the person lacks capacity.

        • King Goat

          “but if she fails to perform, she may still be held responsible for damages”

          That would seem to put some pressure on her inalienable right to control her own body (“of course, I can’t make you abort this unexpected twin, but you’ll have to pay me a gazillion dollars in damages per our contract if you don’t”)…

          • Ron

            Yeah, it would.

          • Lauren Hall

            I’m not sure “control over the fetus” can be understood to be inalienable in any real sense of the term. We place limits on when women are allowed to abort pregnancies all the time and even if you find those limits illegitimate, at some point it does seem as though the fetus’ inalienable right to life begins to place legitimate limits on female bodily autonomy. Even other inalienable rights to life, liberty, and property (assuming you count those) can be contracted and hemmed in in a variety of ways. I don’t see why pregnancy is any different. Unless we’re arguing that the right to control a pregnancy is the only *unlimited* inalienable right that exists, which seems suspect, at least on its face.

          • Ron

            This is not a case of society imposing a limit, it is a voluntary contract agreed to by the surrogate. I have an inalienable right to liberty, but I can still enter into a contract to, for example, mow someone’s lawn. While I’m mowing the lawn, I’m not free to do something else I may want to do. If, after agreeing to mow the lawn I instead go off and do something else, then I’m in breach of contract, but I never lose my inalienable right to liberty.

          • King Goat

            “Even other inalienable rights to life, liberty, and property (assuming you count those) can be contracted and hemmed in in a variety of ways. I don’t see why pregnancy is any different.”

            That’s a good point, but below you say, about abortion in these cases, “no contract can eradicate that right.” Isn’t that itself a recognition that it’s different than (at least some) of the rights you’re talking about? If the right to reproductive freedom were the same as the right to property then contracts requiring abortions would be enforceable, right?

          • Lauren Hall

            I would say it’s already different from other kinds of rights, because it’s one of the few cases where two sets of rights conflict in such a problematic way. But I’m not sure that difference requires a totally different understanding of contract law. I can limit my ability to get an abortion for a fixed period of time to carry someone else’s baby. If I choose abortion during that period of time, I have at least lost whatever benefits I was going to earn under the contract. Depending on my reasons for aborting, it’s hard to see a court assigning damages in such a case, but the clients would certainly be under no obligation to pay for my medical bills, etc. Ron made this point upthread more clearly than I’m doing.

    • Lauren Hall

      The fertility industry has come up with internal rules to deal with some of this. Surrogates almost always have at least one living child, so both they and the clinic know how they have reacted to pregnancy in the past. They also do not carry their own biological child, which clears the way for courts to remove the child from their custody after birth even if they do change their minds. The issue of surrogates choosing to have an abortion is much less clear, since no contract can eradicate that right, but the surrogate can be sued for expenses and will lose any reimbursement for medical coverage to that point, which can be extensive since many insurance policies do not cover (at least not fully) surrogate pregnancies. But you’re right that in intimate matters court-enforcement of contracts are not ideal, which is why most conflicts between surrogates and their clients are worked out outside courtrooms, unlike this one.

      • TracyW

        Losing reimbursement for all medical expenses seems rather unfair as she is still performing the basic contract: delivering babies.

        And a married man doesn’t have the right to stop supporting his wife by being liable for her medical expenses if she refuses to have an abortion while carrying triplets. He’s also responsible for chld custody for all the kids too.

        • Lauren Hall

          I meant she would lose reimbursement if she aborted the fetus altogether, but you’re right that refusing selective reduction adds some interesting complications. In this case the father continued paying after Cook refused to selectively reduce, presumably because his preference for selective reduction was a good faith effort to ensure her health and the health of the babies. Once she refused, suing her for breach of contract doesn’t really accomplish anything. Presumably though, he could have sued her for breach of contract and she would have lost at the very least her non-medical reimbursements, but it’s possible a court would support partial reimbursement since she is delivering (sorry) some of the goods promised.

          I think the husband case is quite different, since it’s also her child, their finances are much more entangled (including probably sharing an insurance policy), and because there’s no previously existing contract specifying that she will abort or not under what circumstances. I’ll have to think that through a bit more though. That’s just my first gut reaction.

  • King Goat

    Would another reason be that having markets in surrogates increases the demand and you will get more situations like this than otherwise?

    • Lauren Hall

      I think that’s probably a concern for many people, though I’m not sure it’s empirically supported. Hiring a surrogate is incredibly expensive and most women *want* to experience pregnancy. Of course, if surrogacy became cheaper one could imagine situations in which women would choose to avoid pregnancy for professional or personal reasons, in which case the demand might rise somewhat. I still can’t see it becoming a regular occurrence.

      • King Goat

        I can’t see how legalizing markets in surrogacy wouldn’t result in lower costs and increased demand. And the more cases of surrogacy, the more potential cases like this one.

        • TracyW

          Although presumably also the more potential cases of alive children than you’d have otherwise have.

          Parenthood + divorce means that kids sometimes get caught up in complicated custody fights running years, is that an argument for discouraging people having kids in the first place?

          • King Goat

            “presumably also the more potential cases of alive children than you’d have otherwise have.”

            ? It’s not like these children are in a holding pen somewhere waiting to be created. If surrogacy (a situation which would be added to all the already existing situations) is not legalized it will happen a lot less, those children wouldn’t exist in the first place.

          • TracyW

            But parents who hire a surrogate are parents who really want a child. When surrogacy works well, producing a live, healthy child, said parents benefit.

          • King Goat

            I guess I was thrown by the way you first phrased that as “the more potential cases of alive children than you’d have otherwise” which didn’t suggest to me you were thinking about the potential parents but rather the utility for the potentially produced children. That seemed odd to me (especially since, as I understand it, there’s currently more children waiting to be adopted than there are adopters for them, if anything increased surrogacy would mean even more of these I should think).

      • murali284

        Didn’t Titmuss observe a similar relationship wrt blood donation? Namely, that with the monetary incentive, a much greater number of donors came from the poor. Since sexually transmitted diseases tended to concentrate among the poor, safeguards which would have otherwise* been adequate to prevent HIV transmission via blood donation became inadequate.

        *As long as your false negative rate is non-zero, increasing the number of HIV+ potential donors increases the chance of HIV+ donors.

  • CJColucci

    I have far less concern with what specific rules there are for surrogacy than with having some sort of clear rules, knowable in advance., to avoid the heartbreak and complications we now see

    • Lauren Hall

      That’s what the contracts are for. It’s still unclear to me why a pro-life woman like Melissa Cook would have signed a contract indicating her willingness to abort a fetus she was carrying. She claims she didn’t read the contract, which is of course a concern with all clear rules, wherever they come from. But in that case the fault lies with her, not the rules themselves, unless the contract was so convoluted that even a good-faith effort to follow it would fail.

      • CJColucci

        That presupposes that surrogacy contracts are enforceable, and known to be enforceable in advance, which isn’t true in many jurisdictions.

      • King Goat

        “But in that case the fault lies with her”

        If, as many potential opponents of surrogacy likely see it, what’s at issue here can’t be contracted away (view of reproductive choice as inalienable) or contracted about (view of abortion as impermissible), then does this matter?

        • Lauren Hall

          Believing that abortion is either an inalienable right or impermissible doesn’t eliminate the moral obligation one has to enter into contracts in good faith. Signing a contract to do something that you believe is morally repugnant and have no intention of doing is a violation not just of contract law but of the morality that underlies all contracts. The moral fault still lies primarily on her, regardless of whether you personally think the contract is enforceable or not.

          • King Goat

            “Signing a contract to do something that you believe is morally repugnant and have no intention of doing is a violation not just of contract law but of the morality that underlies all contracts.”

            I’m thinking of the person who changes their mind on this weighty subject from the time of signing.

    • TracyW

      But there are always going to be edge cases in any law, which we can’t anticipate with clear rules.

      And humanity has been doing conventional pregnancies for hundreds of thousands of years and still gets plenty of heartbreak and complications, so I think expecting to avoid this in surrogacy contracts is optimistic. Kids are fundamentally emotional.

  • Salem

    I don’t think the issue here is money, per se. It’s trust. Brennan and Jaworski say “If you may do it for free, you may do it for money.” A sound rule, but is this the kind of thing you’re allowed to do for free?

    The comparison here is not to an accidental pregnancy. The non-technology, non-money version of this story is that Anna and Bob agree with Charles to get Anna pregnant, then give Charles the children after they’re born. But in what sense are the children A’s (or B’s) to give? They aren’t (pace Rothbard) A’s property, rather she is their guardian. And that guardianship relationship does need to be regulated, to make sure that A really is acting in their best interests. Deference is due to a parent’s judgement, but that deference is not absolute. A parent who steals from or abuses their child is punished, and rightly so. A parent who gives their child away to another without concern for that child’s future welfare is little better.

    Money is felt to be particularly dangerous here because it provides an obvious motive for a trustee to break their obligations and act instead in their own interest. The natural bond means that few people wish to give their children away – but if children are sold to the highest bidder, more might do so.

    • Ron H.

      Salem

      The natural bond means that few people wish to give their children away –
      but if children are sold to the highest bidder, more might do so.

      In this case, the child isn’t the surrogates, and she acknowledges that fact up front, and accepts money as payment for her performance. She isn’t giving anything away. Why is it a problem that more people who want children can have them through surrogacy?

      . A parent who gives their child away to another without concern for that child’s future welfare is little better.

      I think it’s just the opposite. If a person has so little attachment to their child that they can give them away, that child may be better off with someone who actively wants a child, and is willing to accept the guardianship role for that child – *especially* if they are willing to spend considerable money in the process. Every body wins: Child, adoptive parent, and birth parent.

      • King Goat

        Wouldn’t we question the motives and ability of someone who would want to give away their child in choosing who would be the best recipient guardian for the child? And a market in this would create more of these instances.

        • Ron H.

          It seems to me that someone willing to give away (or sell the parental rights to) their child is probably not he best parent for the child in the first place, and their judgement about who would be a good parent may be of little value.

          On the other hand, someone who really wants a child and is willing to spend a substantial amount to get one, would seem to be a better choice IMO. Incentives matter, and our current system offers incentives to keep an unwanted child for the welfare benefits, and to take on the care of a child for the foster care payments. Both seem perverse, and not necessarily in the best interests of the child.

          Yes, a market would create a lot more instances of aligned incentives between birth parents and adoptive parents, almost certainly resulting in better outcomes for children.

          I’m not suggesting an actual market in children, as people can’t be owned, but a market in parental rights contracts, much like the current adoption system but without the cumbersome and inefficient bureaucracy of the state being in the middle.

          • King Goat

            I’m not sure that I’d assume that one who can afford to pay a lot of money for a child is the better parent (have you seen the Northern Exposure episode, “Mite Makes Right” where a rich investor purchases a rare old violin and has a young, gifted but poor violin player come play it for assessment purposes, the player becomes obsessed with the beauty of the instrument but of course cannot come close to buying it from the investor, while the investor sees it as simply an investment to be mothballed, a box to check off in his collection?). And in a system where children (or ‘parental rights’) are sold we’ve got mothers whose judgment, as you seem to concede, about what’s best for the child having a placement system that will allow bidding along criteria that will be enticing to such a mother but not best for the child.

          • Ron H.

            No, I didn’t see the NE episode you mentioned, so I seem to be missing the point. Perhaps the point of that cautionary tale is that poor children shouldn’t be exposed to anything better than what they can reasonably expect to have during their lifetimes. I have avoided any exposure to Lamborghini Aventadors for that very reason.

            The NE story clearly makes the point that all value is subjective, but I don’t think that’s the one you were making.

            Your concerns are legitimate, and no doubt there would be problems in a market for parental rights, as there will be in any human enterprise, but I think they would be fewer than in the current system, and would more closely align the interests of all parties. I didn’t mean to make the size of the payment an important factor in the transaction, only to suggest that a high price paid can indicate a high valuation.

            And in a system where children (or ‘parental rights’) are sold we’ve
            got mothers whose judgment, as you seem to concede, about what’s best
            for the child having a placement system that will allow bidding along
            criteria that will be enticing to such a mother but not best for the
            child.

            I’m sure that’s true, as it is today, but I can imagine far more children going from environments where they are not wanted to environments where they are wanted.

          • King Goat

            If we’re missing each other it’s likely my fault, I’ll try to clarify.

            The point of the NE episode is that the person who ends up with the violin is not the person who loves and values it more, it’s the person who has enough money that he can buy such an expensive thing as an afterthought. I guess the point I was trying to make by referencing it is that because one person could outbid another person for a child I’m not sure that would make them a better potential parent or someone who ‘values’ the child more, it could just as likely mean they’re more wealthy. The poor widow’s pennies are more valuable to her than the wealthy man’s 100 dollar bill, but the latter buys a lot more everyplace other than heaven.

            My second point was this: there’s a system where children could be given away and one where they could be sold (‘parental rights sold’). If we think that someone who wants to give away their child may not be the kind of person who will have the best judgment and motive in doing that, then why would we want to add another potential motive-financial gain-that would distract from what’s best for the child? In a ‘traditional adoption only’ regime this person would have only the best interest of the child available as a criteria, financial gain would be barred. In the ‘market’ scenario there would be another criteria-maximizing financial gain for herself. If she’s already not that good at the first criteria, inviting this second one in really puts it in peril.

          • Ron H.

            The point of the NE episode is that the person who ends up with the
            violin is not the person who loves and values it more…

            Oh, OK, gotcha. I’m not sure there’s any way to measure relative value on a cosmic justice scale that would direct that scarce resource, the violin, to the boy. And I don’t think a third party could make a determination of relative desire and direct the violin one way or another. The only clue we have is price.

            I guess the point I was trying to make by referencing it
            is that because one person could outbid another person for a child I’m
            not sure that would make them a better potential parent or someone who
            ‘values’ the child more, it could just as likely mean they’re more
            wealthy.

            That’s true, but I don’t know how to make a better determination of deservedness. Arbitrary third party judgements are just as likely to get it wrong.

            There’s no reason for an auction in parental rights unless the parties want one. An agreement could be reached between two parties for any amount, including $0, with higher offers being rejected for any reason whatsoever. In addition, there is some limit to how many children a very wealthy high bidder would want, and after that number of wins the person would stop bidding, leaving room for lower bids to succeed.

            My second point was this: there’s a system
            where children could be given away and one where they could be sold
            (‘parental rights sold’). If we think that someone who wants to give
            away their child may not be the kind of person who will have the best
            judgment and motive in doing that, then why would we want to add another
            potential motive-financial gain-that would distract from what’s best
            for the child?

            We might need to overcome the value of the child as an access point to public assistance. I don’t think forcing a person to keep a child they don’t want is a good idea either. A parent might have little interest in whether their child stays or goes, but a financial incentive might tip the scales. Incentives matter. An offer to take an indifferent parent’s child off their hands would likely be met with a slammed door, but an offer of $10k might keep the door open for negotiation.

            I don’t see what additional peril a market system would create. As in every other market, supply and demand would work toward equilibrium at a market clearing price, leaving few children unwanted and few parents without a child they want.

          • King Goat

            “after that number of wins the person would stop bidding, leaving room for lower bids to succeed.”

            Well, there are other wealthy people…In a market based system their bids are going to always win, in a non market based system they’d be in no better position (apart from some baseline of ‘being able to provide for a child’ which a non-market system would likely require).

            “an offer of $10k might keep the door open for negotiation”

            It also would really tempt the not-so-good parent or parent-to- be to favor the person offering 10K over another potential recipient who would be better on ‘best interests of the child’ criteria alone…That’s my concern. You say ‘well, third parties are going to get it wrong sometimes too, so we have to leave it up to the parties,’ but I think any system, even a more market based one, is going to allow for some third party interventions (we’d prevent sales to pedophiles looking for child sex slaves I think).

            “the only clue we have is price.”

            I guess I think price tells us how much disposable wealth someone might have for something as much as it does anything else. But I’m repeating myself at this point and will leave it there.

            Thanks for the discussion, most thought provoking.

          • Ron H.

            (we’d prevent sales to pedophiles looking for child sex slaves I think).

            Perhaps a better word than ‘prevent’ would be ‘prohibit’. Such sales are already prohibited , and rightly so, as violations of people’s rights just as rape, murder, assault and robbery are prohibited. In any system, market or non-market, there will be some pedophiles with child sex slaves. I’m guessing, optimistically, that there are very few people who would sell or give a child to a pedophile, or who would facilitate such an exchange, but we know that, tragically, such sales do occur. If willing parents are hard to find, then child stealers will provide the children. I think the problem is relatively tiny, and would remain tiny compared to the potential increased benefits for thousands of children.

    • TracyW

      But, who is the mother in this case? If the couple hiring to surrogate instead got pregnant naturally, no one would demand that they prove their worthiness to have kids up front. Nor do doctors who specify in fertility treatments first ensure themselves that their patients will make suitable parents. People conceive babies with abusive alcoholics all the time.

      If we view the surrogate mother as a professional helping out an infertile couple then your analogy does not apply.

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