Thursday, November 21, 2013
Concurring Opinions: Why is Reproductive Technology a Battleground in the Abortion Debate?, by Richard Storrow (CUNY Law School):
Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, tending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.
The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. . . .
Tuesday, November 12, 2013
Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.
This Article examines interest creep through the illuminating lens of reproduction law in which it has thrived. Courts have resolved disputes including surrogacy contracts, genetic testing torts, and property claims for lost embryos by casual appeal to the state’s interest in “potential life” that Roe v. Wade designated as the canonical kind that can override rights. My analysis of every case and statute that has invoked this potential-life interest reveals its use to mean not one but four species of government concern. These distinct concerns for prenatal welfare, postnatal welfare, social values, and social effects operate under different conditions and with varying levels of strength. I apply this novel conceptual framework to live controversies involving fetal pain, sex selection, and stem cell research. These case studies demonstrate how ordinary interpretive methods equip courts to unravel the complexity of concerns that interests like “potential life” absorb over time amidst evolving facts and competing values. More broadly, this examination provides a model for how in other areas of law, from campaign finance to affirmative action, judges and lawmakers can repair the confused decisionmaking that interest creep promotes.
See also: The Huffington Post: The Forgotten Holding of Roe v. Wade, by Dov Fox:
Most people identify Roe v. Wade with a single landmark judgment. This is the case that extended the constitutional right of privacy to a woman's decision about whether to keep a pregnancy. Indeed, political, judicial, and scholarly debates about Roe have fixated on the source, content, and legitimacy of that individual right to abortion. . . .
Thursday, October 24, 2013
Call for Papers: Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review
Call for Papers: Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review:
Abortion and reproductive technologies have historically occupied separate realms in law, policy, and academia. In spite of some obvious and natural overlap, scholarship exploring the relationship between abortion and assisted reproduction is sparse. In 2014, Judith Daar (Whittier Law School) and Kimberly Mutcherson (Rutgers Law-Camden) will co-guest edit an issue of the Journal of Law, Medicine & Ethics devoted to articles reflecting on this relationship. JLME is a peer-reviewed journal published by the American Society of Law, Medicine & Ethics.
The guest editors are open to a wide range of scholarship from authors steeped in various aspects of reproductive justice, reproductive rights and reproductive technologies who can explore the future of assisted reproduction and abortion as matters of scholarly concern and legal regulation, especially when viewed as part of a larger movement for reproductive rights and reproductive justice. The term reproductive technologies should be interpreted broadly in this context to go beyond IVF and include a range of techniques used in conjunction with assisted methods of conception.
Monday, August 12, 2013
The Los Angeles Times - op-ed: Assisted reproduction: When does a father become one?, by Naomi Cahn & June Carbone:
A bill in the California Senate would add to uncertainty about parenthood in cases of donated sperm.
When does a man become a father — the legally recognized parent of a child, responsible for support and eligible for custody? Historically, parenthood has involved something more than simply a biological connection. In some eras that meant the law recognized only fathers who married the mothers. Today, recognition extends to unmarried parents who raise a child together.
The new question on the table is whether it extends to a man who donates sperm to a woman and establishes a relationship with the child. . . .
Monday, July 15, 2013
The Los Angeles Times - op-ed: Leveling the field for human egg donors, by Naomi Cahn & June Carbone:
A bill before Gov. Jerry Brown would make it legal for research programs to pay for human eggs, as they do for sperm. But the issue is complicated.
In the United States, there is a competitive market in human eggs provided for reproductive purposes. An "extraordinary" egg donor can earn as much as $50,000 when she offers her eggs to an infertile couple. In California, however, that same "extraordinary" individual would receive nothing, aside from payment for her direct expenses, if she provided those same eggs for research purposes. That could change soon. . . .
Friday, June 7, 2013
I. Glenn Cohen and Travis G. Coan (both of Harvard Law School) have posted Can You Buy Sperm Donor Identification? An Experiment. Here is the abstract:
In the United States, most sperm donations are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea. This study re-lies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.
Monday, May 13, 2013
The current attention to the “end of men” is occurring as men’s role as biological fathers is becoming radically deemphasized through assisted reproductive technologies and alternative family formation. As other historians have noted, since the nineteenth century, there have been serial crises of masculinity in the United States, in which the perceived loss of power by white middle-class heterosexual men has been decried. This essay, written for an on-line forum considering Hanna Rosin's The End of Men, analyzes the current crisis in the context of earlier explorations of the biological end of men, from early twentieth century feminist utopian fiction to lesbian dreams of virgin birth in the 1970s.
Thursday, April 4, 2013
Steven H. Resnicoff (DePaul University College of Law) has posted Family Planning and Government Regulation - Jewish Law Perspectives on SSRN. Here is the abstract:
Jewish law highly
prizes human life. It strongly promotes human reproduction and the protection
of human health. For these reasons, Jewish law generally opposes abortion.
Governmental measures that would require Jews or Jewish organizations to assist
or enable conduct that violates Jewish law, such as religiously impermissible
abortions, would impinge on their religious freedom. In addition Jewish law
usually encourages humankind’s creative use of intellect and technology to
accomplish desired objectives, such as curing and preventing physical
infirmities and even more so with respect to saving human life.
Jewish law authorities have manifested a much more ambivalent attitude regarding the use of modern reproductive technologies. There is a consensus that Jewish law does not require extraordinary measures be used to create human life. However, authorities are acutely sensitive to the fact that many people unable to reproduce in the traditional manner yearn to have children. Moreover, some Jewish law authorities believe that by using certain modern reproductive technologies, a person may fulfill a religious duty to procreate. Nevertheless, other authorities argue that some such technologies actually violate Jewish law. Furthermore, even if the use of particular technologies is permitted, their use, or their possible misuse, could cause considerable societal harm.
This paper, which emerged from a conference held by the DePaul University Health Law Institute, examines these complicated issues in a way that makes the relevant Jewish precepts readily accessible.
Monday, March 25, 2013
The New York Times: North Dakota to Put End to Abortions on the Ballot, by John Eligon:
North Dakota lawmakers passed a resolution on Friday to allow the public to decide whether the State Constitution should assert that life begins at conception, a move that would essentially ban all abortions in the state. . . .
Wednesday, March 6, 2013
NBC Connecticut: Surrogate Gives Birth Against Biological Family's Wishes, by Josh Chapin:
The couple offered her $10,000 to have an abortion, but she refused.
When a Vernon woman was hired to be a surrogate in 2011, she never expected that the decision would lead to a more agonizing decision about the fate of a little girl, a battle in the courts and a move out of state so she had the power to make choices about the child's welfare. . . .
NBCNEWS.com - Vitals: $10,000 to abort? Surrogacy case reveals moral holes bioethicist says, by Arthur Caplan:
Crystal Kelley got paid $22,000 to have a baby. But that wasn’t the only offer the 29-year-old Connecticut mother of two received. After an utrasound at 21-weeks revealed significant medical issues, the parents offered her $10,000 more if she agreed to an abortion.
The gross immorality of that second offer tells us that there is a lot wrong with the first arrangement. It is intolerable that our society continues to put up with an unregulated, free market in hiring cash-starved women to make babies. . . .
Washington Post - She The People blog: Surrogate mother refused abortion: Right? Wrong? Damned to hell?, by Aly Neel:
A surrogate mother and the couple that hired her make a painful discovery after an ultrasound: Their unborn child will have serious health problems and will possibly never have a “normal” life.
The biological parents, who say they cannot bring a child into the world to endure so much suffering, offer the surrogate, who is struggling to make ends meet, $10,000 to abort the baby. . . .
Monday, March 4, 2013
WNYC - The Brian Lehrer Show: Ask a Bioethicist: Reproductive Technology:
We begin a series about medical ethics with Duke University bioethicist Nita Farahany, who sits on the Presidential Commission for the Study of Bioethical Issues. Each week, she'll discuss some of the thorniest bioethical conundrums of our day.
Today's topic: Reproductive technology. We want your suggestions of bioethical questions we should discuss. Should parents be able to choose the sex of their baby? Should there be age limitations on people who undergo in vitro fertilization? That kind of thing. Ask your question below and we'll tackle as many as we can.
The show airs on Tuesday, March 5. Submit your question here.
Monday, February 25, 2013
Martin Hevia and Carlos Vacaflor on In Vitro Fertilization in Latin America and the American Convention on Human Rights
Martin Hevia (Universidad Torcuato Di Tella – School of Law) and Carlos Herrara Vacaflor have posted The Legal Status of In Vitro Fertilization in Latin America and the American Convention on Human Rights on SSRN. Here is the abstract:
In Latin America, Costa Rica is the only country in the region that absolutely bans access to In Vitro Fertilization (IVF). In 2000, the Constitutional Chamber of the Supreme Court of Costa Rica, invoking article 4.1 of the American Convention on Human Rights, the fundamental legal document of the Inter-American system of human rights recognized the embryos’ right to life. The Constitutional Chamber held that given the great possibility that the embryos would be discarded, IVF should be completely prohibited insofar as it violates the right to life.
Recently, in the 2010 report “Gretel Artavia Murillo and others v. Costa Rica,”
the Inter-American Commission of Human Rights (IACHR) concluded that completely
prohibiting access to IVF in Costa Rica is incompatible with the ACHR. The
commission ruled that the Costa Rica Constitutional Chamber’s decision to
establish a total ban on access to IVF constitutes an arbitrary interference
and is a restriction incompatible with the exercise of the rights of private
and family life and the right to form a family — enshrined in articles 11 and
17 of the ACHR. It also held that impeding access to IVF is discriminatory
since it constitutes a burden for a specific societal group: infertile women.
Because Costa Rica had not complied with the IACHR recommendation to lift the
ban on access to IVF, the Commission brought the case before the Inter-American
Court of Human Rights, which is now ready to listen to the parties and resolve
A propos the Commission’s report and as a prelude to the debate that will take place before the IACtHR, this paper analyzes the legal regimen on the process of IVF. In order to do so, it will critically evaluate the core of the IACHR report, and from this, determine the extent of the right to privacy and the right to life in these Latin American countries. This task is indispensable to observing whether the current legal status of IVF, in Costa Rica and other countries in the region, is consistent with the ACHR.
Saturday, February 16, 2013
Maneesha Deckha (University of Victoria – Faculty of Law) has posted Legislating Respect: A Pro-Choice Feminist Analysis of Embryo Research Restrictions in Canada on SSRN. Here is the abstract:
This article investigates the impact of legislating respect and dignity for the embryo in vitro on the legal and cultural status of the embryo in utero. It evaluates the restrictions on embryo re-search in Canada’s Assisted Human Reproduction Act (AHRA) to consider whether they should receive pro-choice feminist support. Specifically, the article explores whether it is possible for feminists to accord respect to the in vitro embryo, as the AHRA attempts to do, without jeopardizing sup-port for abortion. The article canvasses the theoretical possibilities of this position by comparing the compatibility of feminist articulations of a right to abortion (bodily integrity and equality) with feminist arguments against the expansive use of embryos in research (commodification and exploitation). The article argues that it is logically compatible for feminists to promote “respect” and “dignity” for in vitro embryos while maintaining a pro-choice position on abortion. The article nevertheless cautions against feminist support for AHRA as it currently stands given that, on a practical basis, a feminist understanding of the AHRA’s restricted embryo research regime is difficult to achieve in the public sphere. The article explains why the more likely result for the public sphere will be an unqualified discourse of respect and dignity for embryos in general, which could then problematically revive the abortion debate and destabilize the non-personhood status of the in utero embryo. As a remedy, the article provides recommendations for how AHRA should be amended so as to better ensure that legislative restrictions on embryo research signal a legislative intent that respects women’s reproductive autonomy.
Friday, February 1, 2013
Law Students for Reproductive Justice and the Center for Reproductive Rights:
Law Students for Reproductive Justice (LSRJ) and the Center for Reproductive Rights (CRR) invite submissions for the eighth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.
The 1st place winning submission will have a presumption of publishability and will receive expedited review by New York University School of Law’s Review of Law and Social Change. Winning authors will also receive cash prizes: $750 (1st place), $500 (2nd place), or $250 (3rd place).
This year’s theme: “Economic (In)Justice of Reproductive Regulation”
LSRJ & CRR seek student scholarship exploring the economic justice implications of laws and regulations that affect reproductive health and rights in the U.S. Papers may explore a range of issues, such as: tensions between affirmative state obligations and individual rights; consequences of health insurance regulation and the needs of individuals seeking preventative and/or “elective” reproductive care (e.g. should reproductive technologies and contraception be covered, and if so, how?); the impact of state support for specific practices (e.g. breastfeeding, vaccinations, birthing options) on the ability of women and families to make decisions about their care; and the role of the state in health care regulation and funding (e.g. how will Medicaid expansion affect reproductive health access? Who is most benefitted and/or who is left out of the Affordable Care Act?). These ideas are examples of topics that would fit the theme; however, many more issues could be fruitfully explored through the lens of economic justice.
Papers should have a domestic focus, but may draw on international and comparative materials. Authors are asked to apply a reproductive justice lens and/or human rights framework to their analyses of the issues. We encourage writing that amplifies lesser heard voices, applies an intersectional approach to legal thinking, suggests innovative solutions, and/or takes into account the practical realities and the lived experiences of the people affected.
Papers must be at least 20 pages in length (not including footnotes), double-spaced in 12-point font with footnotes in 10-point font, conforming to Bluebook citation format. Only original scholarship by current law students or 2012 graduates will be accepted. Papers being considered for publication elsewhere are ineligible for the first place prize but will be considered for second and third place. Papers already contracted for publication as of March 2013 will not be accepted. Winners will be selected by an outside panel of legal and academic judges.
Tuesday, January 22, 2013
Justicia: Marking the Fortieth Anniversary of Roe v. Wade, Part One: Where Three Common Criticisms Go Wrong, by Michael C. Dorf:
Tuesday, January 22, 2013, will mark the fortieth anniversary of Roe v. Wade, the Supreme Court ruling that recognized a constitutional right of a woman to have an abortion. What lessons can we learn from the case and the ensuing years?
In this, the first of a two-part series on Roe, I consider three common criticisms of the ruling: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues. . . .
Dorf on Law: Roe v. Wade at 40: Acts, Omissions, and Abortion, by Michael C. Dorf:
On Justia's Verdict, my column today--part 1 of a 2-part series--marks the 40th anniversary of Roe v. Wade. Part 2 will appear next Wednesday, Jan. 23, one day after the actual 40th anniversary. In today's column, I explain why three common criticisms of Roe are either mistaken or, if credited, are not really arguments against Roe but much broader arguments against unenumerated rights and perhaps against all of judicial review. Here I want to expand a bit on one point I make in passing in the column. . . .
Monday, December 17, 2012
The Hill - Healthwatch Blog: Senate vote to cover fertility care for female military servicemembers, by Ramsey Cox:
The Senate passed a bill Thursday to cover military service members’ in vitro fertilization (IVF) services through the veterans healthcare system.
Senate Veterans Affair Committee Chairwoman Patty Murray (D-Wash.) introduced the Women Veterans and Other Health Care Improvement Act of 2012, S. 3313, which would improve VA services for women veterans and veteran spouses and end the ban on (IVF) services at VA to help severely wounded veterans start families. . . .
Monday, December 10, 2012
Kristine S. Knaplund (Pepperdine University School of Law) has posted What's Blood Got To Do With It? Determining Parentage for ART Children Born Overseas on SSRN. Here is the absract:
States has long followed the English common law view that citizenship can be
attained at birth in two ways: by being born in the U.S. (jus soli), or by
being born abroad as the child of a U.S. citizen (jus sanguinis). The first,
jus soli, is now part of the 14th amendment to the U.S. Constitution: “All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and the state wherein
they reside.” Jus soli theoretically does not inquire into the citizenship of
the child’s parents; the relevant fact is that the birth takes place in the
United States. Jus sanguinis, in contrast, arises from the parent-child relationship.
The State Department translates jus sanguinis as “from the bloodline,” citing
it as the “traditional Roman law principle.” By “natural parent,” the State
Department means a blood relationship with a U.S. citizen: “It is not enough
that the child is presumed to be the issue of the parents’ marriage by the laws
of the jurisdiction where the child was born.”
A purely genetic connection to the child is sufficient to establish parentage in relatively few instances in American law. One is child support: even if the genetic father has had no contact with the child, and has done nothing to establish a relationship (or even been prevented from knowing about the child), the genetic connection may be enough if no other presumed father is on the scene. This article explores a second instance in which the genetic connection is paramount: when an American citizen gives birth abroad. A genetic test works well for children conceived coitally, but may wreak havoc for those conceived using assisted reproduction techniques (ART). Citizenship has recently been denied to the children of two American women who used anonymously donated gametes to conceive and give birth to a child: one in Israel, and one in Switzerland; in a third case, the U.S. Embassy refused to recognize the birth mother as the child’s mother because she had used donated eggs and given birth to the child in India.
Part I of this Article discusses the origins of jus sanguinis in Roman and English common law, including ancient and medieval views of conception and maternity in determining the child's bloodline. Not surprisingly, these views differ significantly from those held today. Taking into account this scientific background, Part II examines citizenship laws in early U.S. history, and assumptions of who were the parents of a child, both in wedlock and out of wedlock. While the definition of paternity has always taken note of biology as well as a man’s relationship to the birth mother, science began to play a more prominent role in the legal definition of parenthood once blood grouping and blood tests were available in the early 1900s. Part III then introduces the law of U.S. citizenship today, which in its main outlines is the same as first codified in 1952. The ability of DNA testing to positively identify the father in most cases, plus advances in ART that separate the two functions of the birth mother – genetics and gestation – have greatly complicated the definition of parentage for children, but the State Department has, in large part, continued to use the same parentage standard first detailed in 1952. Part IV examines and critiques three methods of identifying parentage: the State Department’s preferred method (genetics), the common law parturient test, and the recently developed intent test, to examine which method of determining parentage should be used for children born abroad. Part V concludes the article.
Sarthak Garg & Keshav Gaur (both of Rajiv Gandhi National University of Law) have posted Reproduction Rights of Women: Ethical or Viable Role of Surrogate Mother on SSRN. Here is the abstract:
Reproductive behavior is governed by complex biological, cultural and psychological relations, hence reproductive health and rights must be understood within the context of relationships between men and women, communities and societies. This research encompasses with these problems which concerned about the reproductive health and rights of the women. It furthermore explains the vulnerability of women and gender biased violence against them. This paper also laid stress on the impact of men’s action over the reproductive health and rights of the women and the key initiatives to deliver reproductive rights and services to the women. Though, this paper also focuses on the rights of the surrogates’ mother and the initiatives taken by the government for the enhancement of the surrogacy and their rights in India. In this research we conceptualize the incidents related to the surrogacy and the legal issues in the global scenario. However, we also gestate the landscape of surrogacy in India, as it is new concept for India and not acceptable as well on various portfolios so we also laid focus on the social and economic background for the profound this concept in the grass root level. While construing this research we also analysis the Artificial Reproductive Technology (ART) bill, in that we critically analysis it’s positive and negative aspects for the concept of surrogacy in India. Eventually, this research also laid impact over the commissioning parents and their rights regarding surrogacy. In the conclusion our research concludes procreating a child in surrogate woman’ womb is grateful gift to those mothers who cannot conceive child.
Wednesday, December 5, 2012
Richard F. Storrow (CUNY School of Law) has posted Judicial Review of Restrictions on Gamete Donation in Europe on SSRN. Here is the abstract:
The decision of S.H. and Others v. Austria vindicates the right of governments to enact restrictions on gamete donation against claims that these restrictions violate the guarantees of the European Convention on Human Rights. Van Hoof and Pennings in this issue predict that legal diversity on the question of gamete donation will persist in the wake of this decision and discuss how the decision itself is insufficiently protective of the private and family interests of individuals who seek reproduction-assisting medical treatment. This commentary discusses the difficult balancing work of the European Court of Human Rights, its questionable expansion of the margin appreciation doctrine in S.H. and Others v. Austria and how the decision might influence national courts in the future.
Monday, November 12, 2012
Eric Engle (Humboldt University of Berlin – Faculty of Law) has posted Eizellenspende & Leihmutterschaft: Eine Rechtsvergleichung: Zweisprachig (Egg Donation and Surrogate Mothers: A Legal Comparison: Bi-Lingual) on SSRN. Here is the abstract:
Dieser Aufsatz ist
zweisprachig. Er vergleicht U.S. amerikanisches Recht mit dem Deutschen im
Bezug auf der Leihmutterschaft und Eizellenspende. Der rechtsvergleichende
Wortschatz die ich hier vorstelle ist genau und richtig.
The topic is egg donation and surrogate motherhood. The U.S. and German law in this field are fairly different, so the comparative topic is scientifically useful.
This is a bilingual parallel text: the information is presented in English and German side by side, so that the essay teaches language as well as law. It proposes good equivalent technical terminology in both languages.