Reproductive Rights Prof Blog

Sarthak Garg and Keshav Gaur on Reproductive Rights of Surrogate Mothers in India

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.

British Columbia Conservative MP's Motion on Sex Selective Abortion Stirs Controversy

The Province: Battle looms over Tory MP's motion on sex-selective abortion, by Jordan Press:

A Conservative backbencher’s motion on sex-selective abortions caught the ire of opposition parties Wednesday, with the NDP and Liberal leaders claiming it was another attempt to outlaw abortion, while the MP behind the proposal called it a stand for human rights.

The volleys over Tory MP Mark Warawa’s motion are part of an ongoing tug-of-war between anti-abortion MPs who want to claim the motion for their cause, and advocates who want to keep the proposal distanced from the politically controversial abortion debate. . . .

Richard Storrow on Judicial Review of Restrictions on Gamete Donation in Europe

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.

Jaime King on Prenatal Genetic Testing and Abortion Politics

Jaime Staples King (Hastings College of the Law) has published Not This Child:  Constitutional Questions in Regulating Non-Invasive Prenatal Genetic Diagnosis and Selective Abortion in the UCLA Law Review. Here is the abstract:

Recent developments in abortion politics and prenatal genetic testing are currently on a collision course that has the potential to change the way we think about reproduction and reproductive rights. In the fall of 2011, the first noninvasive prenatal genetic test for Down syndrome entered the commercial market, offering highly accurate prenatal genetic tests from a sample of a pregnant woman’s blood without posing a risk to the fetus or the mother. In the last five years, over fifty biotechnology start-ups have been created to offer noninvasive prenatal diagnosis (NIPD) for an ever-widening range of genetic and chromosomal conditions. Because of its noninvasive nature, relatively low cost, and early timing, NIPD has the potential to become standard prenatal care for all pregnant women, providing them information on hundreds of genetic and chromosomal characteristics of their prospective offspring soon after they discover the pregnancy. Moreover, the technological development of NIPD has occurred alongside a significant political development: A handful of states have passed or attempted to pass legislation that restricts abortion based on the reasons for which it was sought. These laws have mainly prohibited abortions sought for sex- or race-based reasons, but proposed legislation would also restrict abortions sought for a wider range of genetic conditions. 

The collision of these political and technological developments raises two questions regarding reproductive autonomy: (1) whether the Fourteenth Amendment protects a woman’s right to abort a fetus for any reason; and (2) whether that protection includes the right to access genetic tests that could inform the abortion decision. This Article argues for the reaffirmation of a woman’s right to choose to abort for any reason and grounds that right in strong principles of liberty and autonomy, rather than sex equality. In the context of reproductive genetic testing, the Article identifies a legitimate state interest, previously unrecognized in abortion jurisprudence, in avoiding significant harm to society based on widespread discriminatory selective abortion. The Article then proposes a new framework for examining the regulation of reproductive genetic testing that balances the relevant state and individual interests in a novel manner.

Opinion Piece Challenging Purported Appeals to Science in Support of "Fetal Pain" Abortion Bans

The New York Times - Opinionator:  Can Neuroscience Challenge Roe v. Wade?, by William Egginton:

When I was asked this summer to serve as an expert witness in an appellate case that some think could lead to the next Supreme Court test of Roe v. Wade, I was surprised.

Rick Hearn is the attorney representing Jennie McCormack, an Idaho woman who was arrested for allegedly inducing her own abortion using mifepristone and misoprostol — two F.D.A.-approved drugs, also known as RU-486 — and for obtaining the drugs from another state over the Internet. While the case against Ms. McCormack has been dropped for lack of evidence, Mr. Hearn, who is also a doctor, is pursuing a related suit against an Idaho statute, the “Pain-Capable Unborn Child Protection Act” (Idaho Code, Section 18-501 through 18-510), and others like it that cite neuroscientific findings of pain sentience on the part of fetuses as a basis for prohibiting abortions even prior to viability. . . . 

Ethical Questions Raised About Fertility Clinic Raffles

The New York Times: Clinic Raffles Could Make You a Winner, and Maybe a Mother, by Douglas Quenqua:

“That’s right, one lucky woman will win the ultimate chance at starting or building her family,” said a contest announcement issued in April by Long Island I.V.F., a clinic in Melville that offers in vitro fertilization to women who are having difficulty conceiving. . . .

Kristine Knaplund on Children of Assisted Reproduction Technology

Kristine S. Knaplund (Pepperdine University School of Law) has posted Children of Assisted Reproduction on SSRN. Here is the abstract:  

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year, courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is unclear whether states will enact these new UPC sections; few states have enacted comparable provisions of the Uniform Parentage Act (UPA). The issues can be controversial, particularly regarding children born years after an intended parent’s death, or when the discussion turns to enforcement of a contract for a gestational carrier, the preferred term for a surrogate mother.

This article explores the legal landscape for children conceived through assisted insemination (AI), in vitro fertilization, intracytoplasmic sperm injection, and other techniques. The article discusses the differences between the UPA and UPC sections that concern assisted reproduction. It examines the critical normative and ethical questions answered by these statutes and analyzes the likelihood that states will adopt either uniform act. The article looks briefly at gestational carrier agreements to consider whether and how they should be enforced. The article concludes by noting the need for legislation, the virtues of the UPC over the UPA, and the hope that states will address all those who use ART, including gay and lesbian couples, and single parents.

Scott Burris and Matthew Weait on Criminalization and Moral Responsibility for Knowing Sexual Transmission of HIV

Scott Burris (Temple University – James E. Beasley School of Law) and Matthew Weait (University of London – Birkbeck College, School of Law) have posted Criminalisation and Moral Responsibility for the Sexual Transmission of HIV on SSRN. Here is the abstract:

The essay that follows is an effort to take on a narrow but important question in a serious, though limited, way. The question is whether there is a MORAL case for lifting primary responsibility for Human immunodeficiency virus (HIV) prevention from the shoulders of those who know they are infected. The question is important because, for many people, it feels so obviously right to require those with HIV to accept this responsibility that punishing them as criminals if they fail to do so seems a natural, logical and entirely fair next step. As far as we can tell, objections to HIV exposure or transmission laws to date have rested on practical, rather than moral concerns. We will ask whether there is a good moral case to be made against criminalisation.

There are two important things we will not do. We will not address the use of criminal law to deter or punish people who deliberately expose others to HIV with the aim of causing harm or with callous disregard of a significant risk of transmission. Like other commentators, we regard trying to harm others as wrongful and subject to prosecution regardless of the weapon used; our only concern in such a case, from the HIV perspective, is that a defendant not be punished more harshly only because the chosen weapon was the virus3 The second thing we will not do is attempt a moral analysis that is culturally comprehensive. The people of the world have developed many powerful systems of moral thought. We investigate our moral question within just one, the Western tradition of deontological ethics and liberal political philosophy. Our purpose is not, ultimately, to define for all people and all places a morality of HIV exposure, but to test whether the case for assigning primary moral responsibility for HIV to the person infected is as strong as it is assumed to be.

Pregnant Teen, Who Sparked Debate on Dominican Republic Anti-Abortion Laws, Dies

CNN: Pregnant Dominican teen at center of abortion debate dies, by Rafael Romo:

(CNN) -- A pregnant leukemia patient who became a flashpoint in the abortion debate in the Dominican Republic died Friday morning, a hospital official told CNN.

The 16-year-old, who had been undergoing chemotherapy, died from complications of the disease, said Dr. Antonio Cabrera, the legal representative for the hospital.

Her case stirred debate in her country, as her life was potentially at risk because of anti-abortion laws in the Dominican Republic. . . .

 

Journal of Law and Health: Call for Papers

Journal of Law and Health’s Annual Symposium: The Legal and Ethical Implications of Posthumous Reproduction:

The symposium is tentatively scheduled for March 2013.

In Astrue v. Capato, the Supreme Court held that children conceived through in vitro fertilization after the death of a parent were not automatically entitled to survivor benefits under the Social Security law. The Court stated that the children’s eligibility to receive the benefits depended upon their ability to inheritance under the state’s intestacy system.

Areas of interest for this special journal issue include, but are not limited to, the following topics:

• What steps are necessary to protect the financial interests of posthumously conceived children?
• What regulations are needed to protect the reproductive rights of the dead gamete provider?
• What steps are necessary to address the legal, moral and ethical consequences of posthumous reproduction?
• What impact, if any, will the United States Supreme Court decision in Astrue v. Capato have on posthumous reproduction? 
• Do the dead have a fundamental right to procreate?
• Should posthumously conceived children be treated like heirs under the intestacy system?
• Whether health insurance should cover the expense of posthumous reproduction?

Those interested in submitting an article must submit a 600-word abstract describing selected topic and submit curriculum vitae by October 1, 2012. Email abstract and CV to Journal of Law and Health at health.journal@law.csuohio.edu. Include “Submission: Annual Symposium” in the subject line.

Senate Republicans Push Sex-Selective Abortion Bill Despite House Defeat

The Hill: Sex-selective abortion issue hits Senate, by Elise Viebeck:

Senate Republicans are floating a bill meant to ban sex-selective abortions after an identical measure was defeated in the GOP-controlled House. 

The effort highlights the special attention paid to abortion issues by Republicans in Congress, who are more widely known for their interest in fiscal policy. . . .

How to Combat Sex-Selective Practices in the U.S. (Hint: Not by Banning Abortions)

The Atlantic: Sex Selection in America: Why It Persists and How We Can Change It, by Sujatha Jesudason & Anat Shenker-Osorio:

Son preference, missing girls, sex selection: We may seek to label these Chinese or Indian issues, but they exist here in America. And with anti-choice crusaders desperate to destroy the Planned Parenthood Federation of America, America's leading provider of affordable reproductive health care for women, the purportedly spreading practice of sex-selective abortion is back in the news. With the Prenatal Nondiscrimination Act up for a vote in the House Thursday, it's also back in full force on the legislative agenda.

The extent of sex-selective practices in the U.S. is hard to assess, since it's rarely something people will admit to doing. But we can make an educated guess by observing alterations in expected sex ratios. If nature has its way, women will likely give birth to 100 girls for every 102 to 106 boys (for a ratio of 1.02 to 1.06 boys per girl). And among first-time parents in the U.S., that's exactly what we see. . . . 

Anti-Abortion Group's Video Showing Planned Parenthood Sting Prompts House GOP Vote on "Prenatal Nondiscrimination Act"

The Huffington Post: Planned Parenthood Sting Caught On Video, Released By Anti-Abortion Activists (VIDEO), by Laura Bassett:

A group of anti-abortion activists that Planned Parenthood has suspected is targeting it in a hoax investigation released the first of a series of videos on Tuesday that purportedly shows Planned Parenthood encouraging the selective abortions of girls in the United States.

The activist group, Live Action, sent pregnant actors posing as patients to Planned Parenthood clinics across the country and had them ask a certain pattern of questions about sex-selective abortions. . . .

ThinkProgress.org: House GOP Pushes Ban On Non-Existing Sex-Selective Abortion Problem, by Amanda Peterson Beadle:

House Republicans will force a vote tomorrow on acontroversial abortion ban that would prevent sex-selective abortions. The bill seeks to somehow protect the “civil rights” of fetuses by banning physicians from performing abortions based on the fetus’ sex. While the woman would be exempt from prosecution, physicians who perform the procedure can be sued for damages. . . .

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On the woman being exempt from prosecution, see this post.

Stem-Cell-Based Drug Approved in Canada for Treatment of Graft-Versus-Host Disease

The New York Times: A Stem-Cell-Based Drug Gets Approval in Canada, by Andrew Pollack:

In a boost for the field of regenerative medicine, a small biotechnology company has received regulatory approval in Canada for what it says is the first manufactured drug based on stem cells.

The company, Osiris Therapeutics of Columbia, Md., said Thursday that Canadian regulators had approved its drug Prochymal, to treat children suffering from graft-versus-host disease, a potentially deadly complication of bone marrow transplantation. . . .

Oklahoma State Judge Permanently Blocks Ultrasound Law

Huffington Post: Oklahoma Mandatory Ultrasound Law is Ruled Unconstitutional, by Laura Bassett:

An Oklahoma state judge on Wednesday permanently blocked enforcement of a law that would have required doctors to give a woman an ultrasound and describe the fetus to her in detail before performing an abortion. The ultrasound law, which the Oklahoma Legislature passed in April 2010, had been temporary blocked since the Center for Reproductive Rights filed a lawsuit against it the following month.

The Oklahoma County district court judge found the law unconstitutional, agreeing with the plaintiffs' arguments that it violates medical ethics by forcing doctors to perform medically unnecessary procedures and discounting women's ability to make personal health decisions without the government's interference. . . .

2012 National Health Law Conference in Toronto, Canada

2012 National Health Law Conference: Global Health Challenges & the Role of Law:

May 4 & 5, 2012, Toronto, Canada

This conference will bring together leading scholars, policy-makers, practicing lawyers and health care professionals to explore how law can address global health challenges and make real progressive change. . . .

Post-Viability vs. Third-Trimester Abortion Bans

CNN opinion: Changes in medicine should prompt new limits on abortion, by Mark Osler:

(CNN) -- Thirty-nine years ago, Roe v. Wade was decided. With the passage of nearly four decades, the landscape of abortion has changed in a way that should trouble even those who consider themselves pro-choice.

Right now, 10 states and the District of Columbia have no statutory time limit on when abortions can be performed, while five more states allow abortion up to the end of the second trimester (about 27 or 28 weeks). Yet, we know that by 28 weeks, the great majority of fetuses would survive birth. In other words, we allow the killing of viable infants in our country. This is a fact that progressives (including me) would rather not address. . . .

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Osler states that "one part of [Roe v. Wade] lives on in the statutes of some states and the practices of several doctors: The assertion in Roe's majority opinion that 'viability is usually placed at about seven months (28 weeks).'" Osler is apparently referring to the fact that five states prohibit abortions not after viaiblity, but after the second trimester. He seems to be urging those states to change their bans to apply at viability rather than at the third-trimester mark.  They are, of course, free to do that.  Roe v. Wade held that states may ban abortions at fetal viability (provided the ban includes exceptions for women whose life or health is at risk).  Although the Court noted that viability generally (at that time) occurred around 28 weeks, it did not fix viability at any particular point in pregnancy.  The Court recognized that viability varies from one pregnancy to another and must be individually determined by the physician.  In fact, laws that prohibit abortions at a fixed point in pregnancy are unconstitutional under Roe for a reason many don't even think about, namely because they ban abortions of some non-viable fetuses.  A fetus whose brain has not developed, for example, will never be viable -- not at 23 weeks, not at 27, not at 30.  A woman with a wanted pregnancy who learns only in the third trimester that her fetus will not survive should not be forced to continue her pregnancy to the end, constantly confronted by well-meaning friends and strangers asking when she is due and whether she is having a girl or a boy.

-CEB

Glenn Cohen on Sperm Donor Anonymity

I. Glenn Cohen (Harvard Law School) has posted Rethinking Sperm-Donor Anonymity:  Of Changed Selves, Non-Identity, and One-Night Stands on SSRN. Here is the abstract:

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in this journal, The New Kinship, and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In this Article, I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments she offers for eliminating anonymous sperm donation: (1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves. (2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011), http://ssrn.com/abstract=1955292, and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon). (3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation. (4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

Massachusetts Appeals Court Overturns Order Requiring Forced Abortion and Sterilization of Mentally Ill Woman

MSNBC.com: Forced abortion for a mentally ill woman? No way, says Mass. appeals court, by Jame Eng:

A Massachusetts appeals court has verbally skewered a judge who ordered that a mentally ill woman have an abortion against her will even if it meant she had to be “coaxed, bribed, or even enticed” into a hospital.

The Massachusetts Appeals Court this week overturned the ruling by Norfolk Probate Judge Christina L. Harms, who had also ordered that the 32-year-old woman, known as “Mary Moe,” be sterilized. . . .

Pamela Laufer-Ukeles on Reproductive Choices and Informed Consent

Pamela Laufer-Ukeles (University of Dayton - School of Law) has posted Reproductive Choices and Informed Consent: Fetal Interests, Women's Identity and Relational Autonomy on SSRN. Here is the abstract:

In this Article, I describe and examine the severe shortcomings in women’s autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation: abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women’s values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy.

In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices, a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women’s personal identity interests on the other.