Embryos Are Not People, but Disability Is Difference: Toward an Antidiscrimination Theory for Reproductive Services

Kristen Popham (Columbia University), Embryos Are Not People, but Disability Is Difference: Toward an Antidiscrimination Theory for Reproductive Services (2024):

Developments in reproductive technology are introducing new possibilities for reproductive health, genetic testing, and disease eradication. Simultaneously, legislators and the judiciary have decreased autonomy in reproductive choices. This fatal combination presents challenges for many women seeking reproductive care and protection from federal antidiscrimination laws when healthcare providers make decisions based on unsubstantiated and even intolerant preconceptions about the quality of disabled life. Parallel to other civil rights statutes, the Americans with Disabilities Act (ADA) covers people, and primarily people with disabilities. Under Title III of the ADA, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The 2008 Amendments clarified that disability definitions should be construed broadly, favoring coverage to the maximum extent possible under the terms of the ADA. Yet the ADA has not been interpreted to afford broad coverage to those with unexpressed genetic indicators for disability. The ADA and its Amendments provide little recourse, then, for women with genetic indicators for disease who are denied assisted reproductive technology (ART) services on that basis. This Note highlight the risks of letting unchecked fertility clinic discretion in assisted reproductive technology persist and proposes several possible solutions that bridge antidiscrimination principles and women’s autonomy.