Reproductive Rights Prof Blog

Irish Supreme Court Rules Sperm Donor Has Right to Visit His Son

Boston Globe: Irish court says sperm donor can see son:

DUBLIN - The Irish Supreme Court ruled that a gay man who donated his sperm to a lesbian couple should be permitted to see his 3-year-old son regularly - in part because Ireland’s constitution doesn’t recognize the women as a valid family.

The ruling was a legal first in Ireland, where homosexuality was outlawed until 1993 and gay couples are denied many rights given to married couples. Critics contend the case highlights how Ireland’s conservative Catholic 1937 constitution conflicts with contemporary European norms and fails to address the reality that hundreds of gay couples in Ireland have children.

In their unanimous decision, the five judges said a lower court erred by trying to apply the European Convention on Human Rights in favor of the lesbian couple. The Supreme Court concluded that when the two are in conflict, the Irish Constitution is superior to European human rights law. . . .

Lax Regulation of Surrogacy Can Lead to Ethical Dilemmas

NY Times: Building a Baby, With Few Ground Rules, by Stephanie Saul:

Unable to have a baby of her own, Amy Kehoe became her own general contractor to manufacture one. For Ms. Kehoe and her husband, Scott, the idea seemed like their best hope after years of infertility.

Working mostly over the Internet, Ms. Kehoe handpicked the egg donor, a pre-med student at the University of Michigan. From the Web site of California Cryobank, she chose the anonymous sperm donor, an athletic man with a 4.0 high school grade-point average.

On another Web site, surromomsonline.com, Ms. Kehoe found a gestational carrier who would deliver her baby.

Finally, she hired the fertility clinic, IVF Michigan, which put together her creation last December.

“We paid for the egg, the sperm, the in vitro fertilization,” Ms. Kehoe said as she showed off baby pictures at her home near Grand Rapids, Mich. “They wouldn’t be here if it weren’t for us.”  . . . 

ICSI Fertility Treatment May Produce Fewer Males

ABC News/Reuters Health: Fertility Treatment May Produce Fewer Baby Boys:

NEW YORK (Reuters Health) - The number of baby boys conceived by a fertility treatment known as ICSI may be lower than what is produced by Mother Nature, a new study suggests.

On average, there are 105 baby boys born for every 100 girls -- a natural advantage that helps balance out the higher number of deaths among male fetuses and infants. But in the new study, researchers found that this male-to-female birth ratio seems to be reversed when infants are conceived through intracytoplasmic sperm injection, or ICSI.

Among more than 15,000 U.S. babies born in 2005 via assisted reproduction, the investigators found that a particular ICSI approach appeared to result in a smaller-than-average number of boys.

Jennifer Hendricks on a Feminist Theory of Reproductive Freedom

Jennifer S. Hendricks (University of Tennessee College of Law) has posted Pregnancy, Equality, and U.S. Constitutional Law on SSRN.  Here is the abstract:

This chapter will be part of a collection on international feminist constitutionalism, forthcoming from Cambridge University Press. The chapter proposes a feminist theory of reproductive freedom grounded in U.S. Supreme Court precedent and applies the theory to abortion rights and to parental rights in the context of surrogacy agreements.

Sherry Colb on Narrowing the Scope of Disagreements Over Reproductive Rights

Sherry F. Colb (Cornell University Law School) has posted To Whom Do We Refer When We Speak Of Obligations to 'Future Generations'? Reproductive Rights and The Intergenerational Community on SSRN.  Here is the abstract:

Despite appearances in public debate, there is a surprising amount of consensus across the political spectrum on two basic components of reproductive rights: the O.S.I. (the offspring selection interest) and the B.I.I. (the bodily integrity interest). The O.S.I. holds that people – individually and as groups – have a cognizable interest in deciding their reproductive futures. This interest would include, for example, an individual decision not to have a child with an undesired partner, as well a group decision that people should not have children with their close relatives. The BII concerns itself with the interest in avoiding the physical intrusions that involuntary reproduction would occasion (e.g., rape). In this article, Colb suggests that it is important to keep these two often-overlapping interests distinct in thinking about calls for reproductive rights. Both pro-life and pro-choice theorists tend to assume that the O.S.I. and the B.I.I. go together, for example by arguing either that “when life begins” is a dispositive abortion question or that fetal endangerment legislation is necessarily at odds with the right to terminate a pregnancy. To illustrate the pitfalls of conflating the O.S.I. and the B.I.I., Colb takes up frozen embryo disputes between sperm and egg donors and intra-couple conflicts about abortion. She concludes that although opponents on the abortion issue are unlikely to reach a consensus, the scope of their disagreements can be narrowed and better defined by treating the O.S.I. and the B.I.I. as the independent and severable interests that they truly are.

Premature Births Are Main Reason for High Infant Death Rates in U.S.

NY Times: Premature Births Are Behind Infant Death Rates in U.S., Report Says, by Denise Grady:

High rates of premature birth are the main reason the United States has higher infant mortality than do many other rich countries, government researchers reported Tuesday in their first detailed analysis of a longstanding problem.

In Sweden, for instance, only 6.3 percent of births were premature, compared with 12.4 percent in the United States in 2005 — the latest year for which international rankings are available.

Infant mortality also differed markedly: for every 1,000 births in the United States, 6.9 infants died before they turned 1, compared with only 2.4 in Sweden. Twenty-nine other countries also had lower rates.

Charles Kindregan on Parentage and Assisted Reproductive Technology

Charles P. Kindregan, Jr., (Suffolk University Law School) has posted Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology on SSRN.  Here is the abstract:
 

The traditional family law doctrine governing maternity was easy to apply. Simply stated the rule for centuries was "the birth mother is the legal mother." However, this rule can no longer operate in the growing field of assisted reproductive technology and especially in collaborative reproduction. Today the birth mother is often a surrogate carrier, who may have a genetic connection to the child she births. However, in most cases the surrogate carrier has no genetic connection to the child. In contrast to the birth mother, the intended mother may be designated as both the legal mother under a contract and actually be the genetic mother. In other cases the intended mother provides an embryo to the surrogate carrier which was produced by a donated egg so that even though she intends to be the legal mother she has no genetic connection to the child. While a heterosexual intended mother may resort to surrogacy to overcome an infertility problem, or because of a history of miscarriage or simply to avoid pregnancy, the growing use of assisted reproduction by same-sex couples raises a number of legal parentage problems which are now coming before the courts. Parentage affects custodial and visitation rights and the law of inheritance. There is little statutory law to assist the courts in such cases. The author examines these problems in the light of the newly proposed A.B.A. Model Act Governing Assisted Reproductive Technology, and also considers the proposed uniform laws governing parentage and probate.

Katherine Pratt on Federal Tax Law and Deductions for Fertility Treatment Costs

Katherine Pratt (Loyola Law School - Los Angeles) has posted Deducting the Costs of Fertility Treatment: Implications of Magdalin v. Commissioner for Opposite-Sex Couples, Gay and Lesbian Same-Sex Couples, and Single Women and Men on SSRN.  Here is the abstract:

This Article considers whether federal tax law permits taxpayers to deduct medical expenses (or exclude flexible spending account reimbursements) for fertility treatment costs, including the costs of in vitro fertilization (IVF), egg donor, and surrogate procedures. Magdalin v. Commissioner (December 2008) calls into question the deductibility of IVF, egg donor, and surrogacy costs, and, perhaps unintentionally, the deductibility of the costs of various other types of reproductive medical care (e.g., sterilizations, birth control pills, legal abortions, and vasectomies). This Article explores the tax implications of the case for infertile and fertile taxpayers, including opposite-sex married and unmarried couples, gay and lesbian same-sex couples, and single women and men. The case indicates that the tax deductibility of fertility treatment costs turns on: (1) whether the taxpayer (or “his spouse”) has been diagnosed with “medical” infertility; (2) how we constitute “the body,” “of” “the taxpayer, his spouse, or dependents;” (3) the taxpayer’s sex, marital status, and sexual orientation; and (4) what the IRS and judges implicitly consider to be “natural” or “normal” reproduction. As the case illustrates, most legal discourse - including tax discourse - regarding assisted reproductive technologies assumes that: (1) the need for fertility treatment arises because of medical infertility; (2) women, not men, are infertile; and (3) fertility treatment is undertaken to allow an opposite-sex married couple to bear a child in the context of a traditional nuclear family. This Article also addresses the taxpayer’s argument that the status-based distinctions in section 213 are unconstitutional, discusses the circumstances in which section 213 does and does not aggregate “bodies,” and notes the ways in which law constitutes “the body,” based on notions of what is “natural” or “normal.”

More NY Times on 21st Century Babies: The Implications of Multiple Births

NY Times: Grievous Choice on Risky Path to Parenthood, by Stephanie Saul:

21st Century Babies

. . . The birth of octuplets in California in January placed the onus for large multiple births on in vitro fertilization, a treatment in which eggs are joined with sperm in a petri dish and returned to the womb for gestation.

But [intrauterine insemination] is actually the major cause of quadruplets, quintuplets and sextuplets — the most dangerous pregnancies for both mother and children. While less effective than IVF, intrauterine insemination is used at least twice as frequently because it is less invasive, cheaper and more likely to be covered by insurance, interviews and data show.

Multiples can occur when the high-potency hormones frequently used with the procedure overstimulate the ovaries and produce large numbers of eggs. Parents are then left with . . . tough choices . . . : whether to eliminate some of the fetuses or keep the babies and face extraordinary risks.

NY Times Examines "21st Century Babies": IVF Brings Life, But Also Complications

NY Times: The Gift of Life, and Its Price, Stephanie Saul:

21st Century Babies

. . . An exploration of the fertility industry reveals that the success comes with a price. While IVF creates thousands of new families a year, an increasing number of the newborns are twins, and they carry special risks often overlooked in the desire to produce babies.

While most twins go home without serious complications, government statistics show that 60 percent of them are born prematurely. That increases their chances of death in the first few days of life, as well as other problems including mental retardation, eye and ear impairments and learning disabilities. And women carrying twins are at greater risk of pregnancy complications.

In fact, leaders of the fertility industry and government health officials say that twins are a risk that should be avoided in fertility treatments. But they also acknowledge that they have had difficulty curtailing the trend. . . .

Bridget Crawford on Taxing Surrogacy

Bridget J. Crawford (Pace University School of Law) has posted Taxation, Pregnancy and Privacy on SSRN.  Here is the abstract:

This Article frames a discussion of surrogacy within the context of existing income tax laws. A surrogate receives money for carrying and bearing a child. This payment is income by any definition, even if the surrogacy contract recites that it is a “reimbursement.” Cases and rulings on the income tax consequences of the sale of blood and human breast-milk, as well as analogies to situations in which people are paid to wear advertising on their bodies, support the conclusion that a surrogate recognizes taxable income, although the IRS has never stated so. For tax purposes, the reproductive labor of surrogacy is work. The federal government should take steps to increase tax compliance. The Article considers, and then rebuts, privacy-based objections to a surrogacy tax. Disclosure of income from surrogacy is a reasonable consequence of the freedom to engage in that activity.

Student Scholarship: Racial Classification in Assisted Reproduction

Dov Fox (Yale 2010) has posted Racial Classification in Assisted Reproduction on SSRN.  Here is the abstract:

This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.

Aging Mothers

Slate Magazine (7/30): Fertile Old Ladies, by  William Saletan:

Is it OK to impregnate a 60-year-old woman?

Until recently, this wasn't an issue. Nature exhausted your egg supply, and that was it. But technology has surmounted that problem. Now you can get in vitro fertilization, donor eggs, and womb-rejuvenating hormones. You can freeze your eggs or embryos. You can even freeze your ovarian tissue, reimplant it later, and resume ovulating.

Everywhere you look, moms are older. Over the last three decades, the U.S. birth rate among women aged 35 or older has increased by 140 percent. These women now produce one of every seven American children. In Europe, women over 35 have increased their share of pregnancies from 5 percent to 20 percent. More than 100,000 American women aged 40 or older have babies each year. In the last 15 years, at least a dozen women aged 60 or older have done it. The oldest age at which a woman has given birth is now 70.

Is middle-aged motherhood getting out of control?. . .

Slow Embryo Heart Rate May Indicate Greater Miscarriage Risk for IVF Recipients

Reuters: Slow heart rate predicts failed fertility therapy, by Michelle Rizzo:

NEW YORK (Reuters Health) - A slow embryo heart rate could mean that mothers who have undergone in vitro fertilization are at increased risk for miscarriage, according to a report in the journal Fertility and Sterility.

Somewhere between 10 and 25 percent of women who undergo in vitro fertilization suffer miscarriages, and slow embryonic heart rates have been known to be a sign of trouble. However, "The boundary between slow and normal embryonic heart rates has not been well established in the infertile population," study co-author Dr. Zev Rosenwaks, of Weill Medical College of Cornell University, New York, and colleagues write....

Parents Struggle with Telling Children about Their Surrogate Births

NY Times: No Stork Involved, but Mom and Dad Had Help, by Sara Rimer:

...While there is no widely agreed upon number for surrogate births, the American Society for Reproductive Medicine estimates 400 to 600 births a year from 2003 to 2007 in which a surrogate was implanted with a fertilized egg. Advocacy groups put the count much higher.

So despite the substantial costs (at least $30,000), there is now a group of young children whose parents are wrestling with this modern twist on the eternal question: Where did I come from?

These parents have to take the often excruciating saga of all they went through to have a baby and turn it into a child-friendly, reassuring and true Your Birth Story....

Ignoring the Octomom

Kimberly D. Krawiec (Duke University) has posted Why We Should Ignore the 'Octomom' on SSRN. Here is the abstract:

Thanks to the “Octomom” - a single, low-income, California mother of six, who recently gave birth to octuplets conceived through IVF - the American public this year turned its attention to assisted reproductive technology. In this essay, I take issue with one set of proposals to arise from the controversy: embryo-transfer limits, variations on which have been proposed in Georgia, Missouri, and, most recently, by Naomi Cahn and Jennifer Collins. Examining national and international multiple-birth rates, as well as similar limits in other countries, I argue that government-mandated embryo-transfer limits would produce fewer benefits and higher costs in the United States than proponents assume. First, the Octomom is a sad and disturbing, but aberrant, case. Second, questions of embryo transfer and multiple birth inevitably intersect with other politically contentious issues, including the moral and legal status of embryos and abortion. These political minefields render it highly unlikely that the United States will implement comprehensive embryo-transfer regulation effectively designed to reduce multiple births anytime soon.

NY To Pay Women for Eggs for Stem Cell Research

Wash. Post: New York to Pay Women to Give Eggs for Stem Cell Research, by Rob Stein:

New York has become the first state to allow taxpayer-funded researchers to pay women for giving their eggs for embryonic stem cell research, a move welcomed by many scientists but condemned by critics who fear it will lead to the exploitation of vulnerable women.

The Empire State Stem Cell Board, which decides how to spend $600 million in state funding for stem cell studies, will allow researchers to compensate women up to $10,000 for the time, discomfort and expenses associated with donating eggs for experiments....

The little-noted decision two weeks ago puts New York at odds with policies in every other state that provides funding for human embryonic stem cell research and with prevailing guidelines from scientific organizations, including the National Academy of Sciences.

Census Data Shows Possibile Trend of Sex Selection

The New York Times: U.S. Births Hint at Bias for Boys in Some Asians, by Sam Roberts:

The trend is buried deep in United States census data: seemingly minute deviations in the proportion of boys and girls born to Americans of Chinese, Indian and Korean descent.

Demographers say the statistical deviation among Asian-American families is significant, and they believe it reflects not only a preference for male children, but a growing tendency for these families to embrace sex-selection techniques, like in vitro fertilization and sperm sorting, or abortion.

The findings published by Professors Almond and Edlund were bolstered this year by the work of a University of Texas economist, Prof. Jason Abrevaya. He found that on the basis of census and birth records through 2004, the incidence of boys among immigrant Chinese parents in New York was higher than the national average for Chinese families. Boys typically account for about 515 of every 1,000 births. But he found that among Chinese New Yorkers having a third child, the number of boys was about 558.

Julie Graves Krishnaswami

Cahn and Collins on Restricting Access to Fertility Treatment

Naomi Cahn (GW Law) and Jennifer Collins (Wake Forest) have posted Eight is Enough on SSRN.  Here is the abstract:

January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.

The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to implant a woman under the age of thirty-five with at least six embryos? A final set of issues concerns more fundamental questions about screening parents. How could a clinic provide a single woman with six children with treatment that could double the number of children she has? As a result, commentators and legislators are calling for new, more restrictive regulation of the fertility industry.

We support some of these initiatives, specifically more meaningful limits on the number of embryos that may be transferred in any single IVF procedure. But we are far more troubled by another set of proposals: some commentators are now urging the imposition of restrictions on which individuals may receive fertility treatment. Under this theory, women with a certain number of children, or with limited financial resources, should be precluded from receiving further treatment. Our conclusion here differs from our position about regulating the medical procedures themselves: as we explain, neither fertility clinics nor the state should be in the business of restricting access to reproductive technology.

Symposium on Assisted Reproduction, Race, Class, and Sexuality

The University of Minnesota Law & Inequality journal will host a symposium on April 10, 2009, on "Contested Contours in Assisted Reproduction: Interrogating Law, Race, Class & Sex":

The controversial case of Nadya Suleman, mother of fourteen children conceived with the help of ART; including only the second set of octuplets born in the United States; has captured the attention of mainstream media and ignited public debate. Called into question are the permissible uses of reproductive technology and the role of law in regulating or promoting reproductive choice. Over 50,000 children are born annually in the United States through the use of assisted reproductive technology (ART). The Suleman case captures only a fragment of the larger debates within the larger domain of ART. This symposium will attempt to unpack ART from the margins to its center. In particular, interrogating race, class, and sexuality.

For more details and to register, click here.