Reproductive Rights Prof Blog

Uterus Transplant Fails

New York Times (Mar. 10, 2016): First Uterus Transplant in United States Fails, by Denise Grady: 

Performed by physicians at the Cleveland Clinic, the first uterus transplant in the United States has failed.  The nature of the complications with the transplant have not been revealed, but pathologists are analyzing the uterus in the hopes of determining what went wrong.  

The Clinic's uterine transplant program is an effort to enable women without a uterus to become pregnant and give birth. 

First Successful Uterine Transplant in the United States

New York Times (Feb. 25, 2016): First Uterus Transplant in U.S. Bolsters Pregnancy Hopes of Many, by Denise Grady:

Doctors at the Cleveland Clinic have performed the first uterus transplant in the United States.  The recipient is already a mother, having adopted three boys.

The surgery is complex and multi-phased.  The recipient first undergoes egg extraction.  The eggs are then fertilized with the sperm of her partner, and the resulting embryos are frozen.  The recipient then begins a regime of immunosuppressants, in preparation for the transplant.  She will be monitored for a year to determine whether the transplant was successful.  Only then will embryos be introduced into the uterus.  After one or two successful pregnancies, the uterus will be removed.   

The Cleveland Clinic will attempt ten uterine transplants as part of a clinical trial to determine whether it will offer uterine transplant as a standard procedure.

The development of uterine transplants has been profiled in this space twice before, once in 2007 and again last fall.

Veterans and Infertility

New York Times (Feb. 29, 2016): Veterans Seek Help for Infertility Inflicted by Wounds of War, by Denise Grady:

Despite a new policy giving troops the opportunity to freeze their eggs or sperm before deployment, the military offers veterans no coverage for in vitro fertilization (IVF), leading to questions about how best to support soldiers who sustain injury to their reproductive systems in combat and are medically retired or discharged from the military.  Adding insult to injury is the fact that the military does cover IVF for active-duty service members.  A bill to rectify this inequity was headed toward a vote last summer, but its sponsor withdrew it when Republicans threatened to riddle it with exceptions that would prohibit the Veterans Administration from having anything to do with Planned Parenthood. 

Should parents be allowed to use IVF to choose the sex of their baby?

CNN (Feb. 26, 2016) Should parents be allowed to choose the sex of their baby?, by Carina Storrs:

Prospective parents may have preferences on whether they have a boy or girl.  In vitro fertilization (IVF) opens up new possibilities for parents to choose the sex of their baby as well as controversies about whether sex selection is appropriate.  The American Society for Reproductive Medicine initially took the position that use of IVF for sex selection should "not be encouraged" but recently eased its stance.

Determination of the sex of an embryo prior to implantation requires genetic screening, which provides prospective parents with genetic information about the embryo, including its sex.  Some clinicians argue that manipulating the embryo to conduct the screening creates an unnecessary risk , but there is no current evidence that it is unsafe.  There is also concern that the use of IVF for sex selection could divert resources away from medically necessary IVF.

Perhaps the greatest concern about sex selection is that it could cause or reinforce gender bias.  In the United States, there is no evidence that parental choice would lead to a gender imbalance, and it appears more likely that sex selection is used as a form of "family balancing."  For instance where parents of boys may decide they would like their next child to be a girl.  However, even this "gender neutral" form of sex selection may reinforce bias and attitudes about the link between gender differences and biological sex.  Canada and the United Kingdom have banned the use of IVF for sex selection except if it is used to avoid the risk of sex-linked genetic diseases.

 

Bioethicists Approve '3 Parent' Embryos

The Washington Post (Feb. 3, 2016): Ethicists approve ‘3 parent’ embryos to stop diseases, but congressional ban remains, by Joel Achenbach: 

An advisory panel called together by the US Food and Drug Administration concluded, this week, that it is ethically permissible to proceed with in-vitro fertilization that combines the DNA of three parents to form an embryo. The panel, made up of scientists and bioethicists, approved a procedure called mitochondrial replacement techniques (MRT), but advises caution in its use. 

MRT replaces the nucleus of a donor's egg with the mother's nucleus and then fertilizes the egg with the father's sperm. The procedure guards against certain diseases that can be passed down from mother to child through the egg's mitochondria. 

Though the procedure has been approved by the House of Lords in the UK, it is currently on hold in the US due to a congressional ban. 

More information can be found at Slate. 

Frozen Embryos and the Anti-Abortion Movement

New York Times (Jan. 19, 2016): Anti-Abortion Groups Join Forces Over Frozen Embryos, by Tamar Lewin:

Disputes by divorcing couples over frozen embryos are nothing new.  In the past they have been decided in favor of the party who does not want to procreate or in accordance with any contracts the couple executed to control their disposition.  But a new litigation strategy is for the party seeking to have children with the embryos without the consent of the other to hire counsel better known for their anti-choice stance in the abortion wars.  The legal theory these lawyers expound is that an embryo has a fundamental interest in being born, ergo, that the party who wishes to procreate should be allowed to do so.  The strategy fits nicely within the "personhood" theory which holds that an embryo is a person at the moment of conception.  Indeed, counsel in an ongoing appeal in a frozen-embryo dispute in Missouri cite the Missouri law that life begins at conception.  Of course a court will probably not find the existence of "human life" to be synonymous with the existence of a "human person," if only to adhere with the Supreme Court's decision in Roe v. Wade, which remains the law of the land.   

 

With In Vitro Fertilization, Persistence Pays

New York Times (Dec. 23, 2015): With In Vitro Fertilization, Persistence Pays Off, Study Suggests, by Catherine Saint Louis:

Doctors have long thought that after three or four failed rounds of in vitro fertilization, the prospect of a patient becoming pregnant are grim.  But a study published recently in the Journal of the American Medical Association calls into question the received wisdom.  The study finds "that nearly two-thirds of women undergoing I.V.F. will have a child by the sixth attempt, suggesting that persistence can pay off, especially for women under 40."  Indeed, there appears to be a modest increase in the cumulative rate for live births up to the ninth IVF cycle.  Few patients can afford, however, that many cycles of IVF, which cost $12,400 each on average.  And risks such as ovarian hyperstimulation syndrome must be taken into account, as must the shattering emotional toll of failed cycles. 

 

Egg Donors' Class-Action Lawsuit Advances

New York Times (Oct. 16, 2015): Egg Donors Challenge Pay Rates, by Tamar Lewin:

In a federal lawsuit, a group of women are challenging [infertility] industry guidelines that say it is “inappropriate” to pay a woman more than $10,000 for her eggs. The women say the $10,000 limit amounts to illegal price-fixing, and point out that there is no price restriction on the sale of human sperm. A federal judge has certified the claim as a class action.

The crux of the lawsuit is the allegation that infertility clinics have set the price of egg donor services at a low, non-competitive level, in a move that draws infertile couples to infertility clinics.  The industry has responded that the guideline aims to protect egg donors and recipients, an arguably procompetitive motive.  But as Kimberly Krawiec has pointed out, the evidence in the case seems to point the other way: egg donors could command higher prices in the open market.  A cap on the price they can charge diminishes their power in the marketplace.

The lawsuit will likely go to trial next year.

New York Times Op-Ed on Frozen Embryos Prompts Outrage

The New York Times op-ed: Sofía Vergara’s Ex-Fiancé: Our Frozen Embryos Have a Right to Live, by Nick Loeb:

LAST August, I filed a complaint in Santa Monica, Calif., using pseudonyms, to protect two frozen embryos I created with my former fiancée. I wanted to keep this private, but recently the story broke to the world. It has gotten attention not only because of the people involved — my ex is Sofía Vergara, who stars in the ABC series “Modern Family” — but also because embryonic custody disputes raise important questions about life, religion and parenthood.

When we create embryos for the purpose of life, should we not define them as life, rather than as property? Does one person’s desire to avoid biological parenthood (free of any legal obligations) outweigh another’s religious beliefs in the sanctity of life and desire to be a parent? . . .

The New York Times - Public Editor's Journal: Frozen Embryos Article Was Intended to Spark Debate: Mission Accomplished, by Margaret Sullivan:

An Op-Ed essay titled “Sofía Vergara’s Ex-Fiancé: Our Frozen Embryos Have a Right to Live” started to draw fire almost immediately after its publication Wednesday night.

The vehemence of reader criticism prompted me to ask Andrew Rosenthal, the editorial page editor who supervises the opinion-side sections of The Times, for response. . . .

Elton John Boycotts Dolce & Gabbana for Disparaging IVF

The Washington Post: Elton John is boycotting Dolce and Gabbana for calling children conceived with IVF ‘synthetic’, by Soraya Nadia McDonald:

This year, Italian designers Domenico Dolce and Stefano Gabbana unveiled a celebration of motherhood at Milan Fashion Week, sending models down the catwalk who were visibly pregnant or carrying little chubby-cheeked bundles of joy. . . .

Recent statements Dolce and Gabbana made to Panorama, an Italian magazine, have cast their fall-winter 2016 collection, which they named “Viva la mamma,” in an entirely new light.

In the interview, translated by the Telegraph, the couple stated: “We oppose gay adoptions. The only family is the traditional one. … No chemical offsprings and rented uterus: Life has a natural flow, there are things that should not be changed.”

“You are born to a mother and a father — or at least that’s how it should be,” Dolce said. “I call children of chemistry, synthetic children. Rented uterus, semen chosen from a catalog.” . . .

Should Single-Embryo Transfer Be the Standard of Care for IVF?

Newsweek: Twins: The Fetal Paradox, by Amy Klein:

In 2004, Danielle Decrette went in for in vitro fertilization. It wasn’t her first time—she and her husband had a 3-year-old daughter conceived through IVF—and she knew what she was getting into. Just as he had four years before, Decrette’s doctor stimulated her with hormones, extracted her eggs from her ovaries, fertilized them with sperm in the lab and placed the resulting embryo in her uterus. But this time the process failed. So the doctor decided to transfer two embryos in the next round to increase her odds of getting pregnant.

“You know you could have twins,” the doctor warned her before the procedure. . . .

That was 10 years ago. Today, fertility doctors would almost certainly have pushed her away from the idea of a two-embryo implant . . . .

Dov Fox on Racial Classification in Assisted Reproduction

The Huffington Post -- The Blog: Reproducing Race, by Dov Fox (University of San Diego Law):

More than a million children in the U.S. each year are conceived with donated sperm or eggs. Sperm banks and egg vendors offer online ordering and direct shipping of donor materials that prospective parents can shop for based on SAT scores, personality tests, and celebrity likeness. 

"[W]hat we try to do is give [parents] as much choice as possible," explains Dr. Cappy Rothman, co-founder of the world's leading sperm bank, California Cryobank. "If our customers wanted high school dropouts," he adds, "we would give them high-school dropouts."

What many of these (mostly white) parents want is a child who will look like they do. This means picking a donor who is, like them, white. . . .

Time-Lapse Video Helps in Embryo Selection for IVF

CNN:  Time-lapse video reveals secret life of an embryo, helps women conceive, by Kieron Monks & Samantha Bresnahan:

It is estimated that around one in four couples around the world have trouble conceiving. For a small proportion of them, In Vitro Fertilisation (IVF) is a technology that can restore the dream of parenthood.

IVF is the fertilization of an egg by sperm outside the body, where it is cultivated in a lab environment, and if an embryo results it is implanted into the mother's womb. Now the chances of IVF treatment being successful are being boosted by a machine called the Embryoscope. . . .

____________________________

The commonly accepted practice of selecting only certain embryos for implantation in IVF illustrates that most do not believe embryos have the moral status of persons.

-CEB

Judith Daar and Erez Aloni on Mitochondrial Replacement

The Los Angeles Times - op-ed:  Three genetic parents -- for one healthy baby, by Judith Daar & Erez Aloni (both of Whittier Law School):

New technology would enable women who carry harmful mutations in their mitochondria to have a child without those harmful mutations. Despite concerns, that's a good thing.

Since January, a new California law allows for a child to have more than two legal parents. But children are still limited to two genetic parents. That could change soon, if the Food and Drug Administration approves human clinical trials for a technique known as mitochondrial replacement, which would enable a child to inherit DNA from three parents.

News of the pending application has caused a kind of panic not seen since Dolly the sheep was cloned, raising the possibility of a single genetic parent. But far from being the end of the human race as we know it, the technique might be a way to prevent hundreds of mitochondrial-linked diseases, which affect about one in 5,000 people. . . .

FDA Advisory Panel Debates Ethics of "3-Parent Embryo" Procedure

USA Today: FDA raises concerns about three-parent embryo procedure, by Karen Weintraub:

In two days of hearings ending Wednesday, a federal committee proved quite skeptical about research that might help some patients birth healthy children — but might also open the door to human gene manipulation.

The procedure being considered, called mitochondrial transfer, would mix the genes of two women in hopes of creating a healthy baby. . . .

WebMD: FDA Explores '3-Person' Embryo Fertilization, by Dennis Thompson:

U.S. Food and Drug Administration hearings opened Tuesday on a controversial fertilization technique that uses the DNA from three people -- two women and one man -- with the goal of preventing inherited genetic diseases. . . .

Increased Genetic Testing of Embryos Raises Ethical Questions

The New York Times: Ethics Questions Arise as Genetic Testing of Embryos Increases, by Gina Kolata:

. . . Genetic testing of embryos has been around for more than a decade, but its use has soared in recent years as methods have improved and more disease-causing genes have been discovered. The in vitro fertilization and testing are expensive — typically about $20,000 — but they make it possible for couples to ensure that their children will not inherit a faulty gene and to avoid the difficult choice of whether to abort a pregnancy if testing of a fetus detects a genetic problem.

But the procedure also raises unsettling ethical questions that trouble advocates for the disabled and have left some doctors struggling with what they should tell their patients. . . .

Richard Storrow on Anti-Abortion-Rights Incrementalism and Assisted Reproductive Technology

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. . . .

Dov Fox on the "Potential-Life Interest" in Reproduction Law

Dov Fox (University of San Diego School of Law) has posted Interest Creep on SSRN. Here is the abstract:

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. . . .

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.

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California Bill Prompts Question: When Does a Sperm Donor Become a Father?

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. . . .