Reproductive Rights Prof Blog

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.

Judith Daar on Embryonic Genetics

Judith F. Daar (Whittier Law School) has posted Embryonic Genetics on SSRN. Here is the abstract:

Recent discoveries in the world of reproductive medicine allow prospective parents to peer into the genetic future of their children from the earliest moments of life. Armed with this information, parents can choose whether or not to continue along the procreative path by selecting or discarding embryos on the basis of their genetic composition. In making this decision, a parent's view of health and disability figure prominently, sometimes yielding outcomes that cause a larger community to rethink the concept of health.

This article explores the use of preimplantation genetic diagnosis (PGD) to detect the genetic health of early embryos prior to implantation. Genetic selection for medical reasons is explored from three rationales: 1) to ensure the health of the embryo, 2) to ensure the health of an existing person, and 3) to ensure the continuity of a genetic trait within the family structure. Ultimately, a matrix is suggested for policy-makers to utilize in reflecting on legal strcutures to govern the use of PGD and other advancing reproductive technologies.

Arlene Roberts on Reproductive Rights and the New Scrutiny of the Fertility Industry

Huffington Post: Octomom, Sextomom and the Looming Incursions on Reproductive Rights, by Arlene M. Roberts:

At the end of January, a woman in California gave birth to octuplets. Last October, a woman in New York gave birth to sextuplets. The mother in California, Nadya Suleman, was dubbed "Octomom" and has spawned bills limiting embryo implants; the mother in New York was dubbed 'miracle mom' and later given front page coverage in the New York Daily News, in an article headlined "6 in the City". The reaction to these developments and the disparity in treatment of the two women provides a glimpse into society's attitudes towards women's reproductive rights....

Last week I attended a forum titled "Race, Reproductive Rights Policy and the New Administration hosted by the Women of Color Policy Network. I followed up with panelist and law professor Dorothy Roberts, author of "Killing the Black Body: Race, Reproduction and the Meaning of Liberty", since I wanted to learn about her reaction to the proposed legislation.

Georgia Bill That Attempts To Grant Embryonic Rights And Increase IVF Oversight Advances

The Atlanta Journal Constitution: Embryo Rights go too far in Senate (Editorial), by Maureen Downey:

Senate Bill 169 —- the Ethical Treatment of Human Embryos Act —- declares: “A living in vitro human embryo is a biological human being who is not the property of any person or entity.” Should that bill become law, it will halt the embryonic stem cell research in Georgia that offers the promise of curing Alzheimer’s and repairing spinal cord injuries.

More immediately, it will so complicate legal questions around frozen embryos that it could drive in vitro fertilization clinics out of the state, forcing desperate Georgia couples to go out of state as well.

The law’s real intent is to outlaw abortion, a goal its proponents acknowledge. At the hearing, testimony in favor of SB 169 came from Georgia Right to Life, the Georgia Baptist Convention and the Georgia Catholic Conference. While stem cell research may potentially save many lives, those opponents argued it deals a death blow to the embryo itself, which they see as an unconscionable trade-off.

Fertility Institute Retracts "Designer Baby" Pitch

Triage (Chicago Tribune): Designer baby plan nixed for now by fertility clinic, by Judith Graham:

The fertility clinic operator who grabbed headlines with his promise to help parents create “designer babies” has backed away from the plan—for the moment.

Dr. Jeff Steinberg, director of The Fertility Institutes, earlier this year had offered parents the opportunity to select their future offspring’s hair, eye and skin color by genetically testing embryos.

After an outcry, he changed his mind. “Though well intended, we remain sensitive to public perception and feel that any benefit the diagnostic studies may offer are far outweighed by the apparent negative societal impacts involved,” according to a statement posted on the clinic’s Web site this week.

Fertility experts were quick to note that science didn’t support Steinberg’s marketing pitch. Although embryos created through assisted reproduction can be tested for some genetic defects, the science of selecting cosmetic traits based on DNA data is not even close to being well established.

Practices at Fertility Institute Raise Ethical Questions About "Designer Babies"

CBS News: "Designer Babies" Ethical?:

For years, reproductive specialists have been helping people become parents, even enabling them to choose the sex of their baby.

One fertility doctor is taking things a step further, offering what some are calling "designer babies," as Early Show national correspondent Hattie Kauffman reports.

If you could design your baby's features, would you? According to L.A.'s Fertility Institute, prospective parents can select eye color, hair color and more.

The technology is called pre-implantation genetic diagnosis or PGD. It was created to screen for disease, then used for gender selection. Now this clinic plans to allow parents to select physical traits

Kirsten Smolensky on Creating Children with Disabilities -- Plus Responses

Kirsten Rabe Smolensky (University of Arizona) - Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions:

Using preimplantation genetic diagnosis (PGD), parents can screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.
 
This article suggests that children should be able to successfully sue their parents who engage in certain direct genetic interventions. Tort law should protect a child's moral right to an open future where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. In reaching this conclusion, the article addresses various barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns.

Jaime S. King (Hastings) - Duty to the Unborn: A Response to Smolensky:

This article responds to Professor Kirsten Smolensky's article in Hastings Law Journal titled Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions by arguing in favor of creating a duty for individuals to act as reasonably prudent parents with respect to their preimplantation reproductive decisions. In addition, the article advocates use of a balancing test to determine the reasonableness of parents' choices when compared to the risks associated with using genetic testing and assisted reproductive technologies. The article concludes with an argument for national regulation as the primary social response to challenges associated with assisted reproductive technology rather than tort liability.

The abstract of another response by I. Glenn Cohen was earlier posted on this blog and is available here.

Symposium: Legal Developments and Challenges in Reproductive Justice

Cardozo Journal of Gender and Law is hosting a Symposium on Legal Developments and Challenges in Reproductive Justice:

In this time of political change and economic uncertainty, the status of reproductive rights is shifting rapidly. Advocates are trying to understand these rights broadly and inclusively to anticipate potential avenues for development of social justice and its obstacles.
What do new lawyers need to know about the present landscape to help achieve reproductive justice?

Wednesday, February 25, 2009

8:30am - 5:30pm

Benjamin N. Cardozo School of Law, Moot Court Room

55 Fifth Avenue, New York City

Fertility Industry Under New Scrutiny

NY Times: Questions Grow for Fertility Clinics, by Stephanie Saul:

Pictures of children, his trophies, decorate Dr. Tien Chiu’s office.

Three smiling newborns, he says, were the first Japanese-American triplets conceived in a laboratory, while the robust-looking quadruplets were born after sperm was injected into their mother’s eggs with a needle.

To the couples who turned to Dr. Chiu to have families, the babies were special gifts. To the government and fertility industry, though, such large multiple births have begun to look like breakdowns in the system. The issue has taken on renewed scrutiny since a California woman, Nadya Suleman, who already had six children conceived through in vitro procedures, gave birth to octuplets near here last month.

Anne Donchin on Assisted Reproduction Policy

Anne Donchin (Indiana University/Purdue University Indianapolis) has posted Toward a Gender Sensitive Assisted Reproduction Policy on SSRN. Here is the abstract:

The recent case of the UK woman who lost her legal struggle to be impregnated with her own frozen embryos, raises critical issues about the meaning of reproductive autonomy and the scope of regulatory practices. I revisit this case within the context of contemporary debate about the moral and legal dimensions of assisted reproduction. I argue that the gender neutral context that frames discussion of regulatory practices is unjust unless it gives appropriate consideration to the different positions women and men occupy in relation to reproductive processes and their options for autonomous choice. First, I consider relevant legal rulings, media debate, and scholarly commentary. Then I discuss the concept of reproductive autonomy imbedded in this debate. I argue that this concept conflates informed consent and reproductive autonomy, thereby providing an excessively narrow reading of autonomy that fails to give due regard to relations among individuals or the social, political and economic environment that shapes their options. I contrast this notion of autonomy with feminist formulations that seek to preserve respect for the agency of individuals without severing them from the conditions of their embodiment, their surrounding social relationships, or the political contexts that shape their options. Taking these considerations into account I weigh the advantages of regulation over the commercial market arrangement that prevails in some countries and suggest general guidelines for a regulatory policy that would more equitably resolve conflicting claims to reproductive autonomy.

Octuplets' Birth Raises Questions About Fertility Treatment Policies

TIME: Octuplets Fallout: Should Fertility Specialists Set Limits?, by Bonnie Rochman:

Just about the time that eight babies began growing inside a California woman's womb, some nationwide policies about fertility treatment were being codified. In June, the American Society for Reproductive Medicine issued updated "Guidelines on Number of Embryos Transferred." Women under 35 — the octuplets' mom is reportedly 33 — should attempt to transfer no more than two, and preferably only one, fertilized embryo at a time. Women over 40 should attempt no more than five.

How the California woman, apparently a single mother who already has six young children, including a set of twins, got pregnant is the subject of rampant speculation. But regardless of whether the octuplets are the result of in vitro fertilization (IVF) or fertility drugs — with the latter having historically been available on the cheap in Mexico — there is little doubt that from a medical and ethical perspective, something went very wrong. And fertility specialists now find themselves on the defensive, trying to fend off the perception that theirs is an undisciplined, irresponsible profession.

Conference on ART and the Politics of Reproduction

Via the Barnard Center for Research on Women:

The Scholar & Feminist Conference XXXIV
THE POLITICS OF REPRODUCTION:
New Technologies of Life

Saturday, February 28, 2009
Barnard College
3009 Broadway (at 117th St)
New York, NY 10027

Increased demand for assisted reproductive technology (ART) and transnational adoption has been propelled by a number of factors, including the development of new technologies and changes in familial form—such as childrearing in second or third marriages; lesbian, gay, and transgendered families; and delays in childbearing and subsequent difficulties in conception—that make ART helpful. Other relevant factors include environmental changes that have negatively affected fertility levels, new levels of transnational migration and interaction that have fueled awareness of babies available for and in need of adoption, and concerns about genetic diseases and disabilities. Effectively, the various imperatives and the desires, both cultural and personal, that the use of ART fosters and responds to, have created a "baby business" that is largely unregulated and that raises a number of important social and ethical questions. Do these new technologies place women and children at risk? How should we respond ethically to the ability of these technologies to test for genetic illnesses? And how can we ensure that marginalized individuals, for example, people with disabilities, women of color, and low-income women, have equal access to these new technologies and adoption practices? And, similarly, how do we ensure that transnational surrogacy and adoption practices are not exploitative? These questions and many others on the global social, economic and political repercussions of these new forms of reproduction will be the focus of this year's Scholar and Feminist Conference.

The conference is open to the public and admission is on a sliding scale (students are free). 

Click here to register.

Glenn Cohen on the Use of ART To Create Disabled Children

I. Glenn Cohen has posted Intentional Diminishment, the Non-Identity Problem, and Legal Liability on SSRN. The article has been published as part of a symposium by the Hastings Law Journal. Here is the abstract:

This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children and whether legal liability should attach to such acts. In particular, this Essay considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.

In her Article in this symposium, Kirstin Smolensky suggests that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it was done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability.

In this Article I critically examine this claim in two ways. First, I suggest some problems with her arguments for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children.

Second, I examine whether legal liability should be barred even for cases where the Non-Identity Problem applies. I set out several approaches drawn from the bioethics literature that suggest that the parents have acted wrongfully by creating disabled children notwithstanding the Non-Identity Problem. I then offer some tentative views about whether any of these approaches is a valid basis for legal liability, discussing tort law, which is Smolensky's focus, and also extending the project beyond tort to discuss criminal law and other forms of legal regulation.

In Economic Slump, More Women Donate Their Eggs

CBS News: Down Economy + Egg Donations = Fast Cash, by Cindy Hsu:

In these tough economic times, people are getting more creative to make ends meet.

According to fertility clinics, more and more women are turning to egg donation to earn as much as $10,000.

The applications are pouring in from women wanting to donate their eggs at Northeast Assisted Fertility Group in Midtown. In the last couple months, the number of applicants has doubled to about 100 a week.

Student Scholarship: Modern Genetic Testing

Dov Fox (Yale Law School) has posted Reproduction Law in International Perspectives on SSRN. Here is the abstract:

The word "eugenics" derives from the Greek words eu (good) and gen (relating to birth), or eugenes, which means "good in birth." In Heredity and Hope, sociologist and historian Ruth Schwartz Cowan defends modern genetic testing - the new genetics - by distinguishing it from twentieth century eugenics - the old genetics. Examining the history of carrier screening and prenatal diagnosis, Cowen suggests that we are right to recoil from the old genetics, with its coercive methods and hateful motives, but affirms that we should embrace a new genetics, which enables parental autonomy and promotes offspring well-being. I call Cowen's defense of the new genetics into question by challenging the disanalogy she draws between the old genetics and the new genetics. Drawing on contemporary case studies of reproduction law in Israel, Cyprus, Taiwan, China, Singapore, and the United States, I try to show that the new genetics is similar, in important and objectionable respects, to the old genetics. The argument proceeds in three parts. Part I unpacks the moral goods of parental autonomy and offspring well-being that Cowan locates in the new eugenics. Part II unravels the disanalogy between the old genetics and the new genetics by demonstrating their shared biological approach as a solution to social ills. Part III argues that the new genetics threatens to undermine social equality for people with disabilities.