Wednesday, December 5, 2012
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.
Wednesday, October 31, 2012
Jim Hawkins (University of Houston Law Center) has posted Selling Art: An Empirical Assessment of Advertising on Fertility Clinics' Websites on SSRN. Here is the abstract:
Scholarship on assisted reproductive technologies (ART) has emphasized the commercial nature of the interaction between fertility patients and their physicians, but little attention has been paid to precisely how clinics persuade patients to choose their clinic over their competitors. This Article offers evidence about how clinics sell ART based on clinics’ advertising on their websites. To assess clinics’ marketing efforts, I coded advertising information on 372 fertility clinics’ websites. The results from the study confirm some suspicions of prior ART scholarship, while contradicting others. For instance, in line with scholars who are concerned that racial minorities face barriers to accessing ART, I found that 97.28% of the websites that contain pictures of babies have pictures of White babies, and 62.93% have pictures of only White babies. Similarly, in agreement with prior work that challenges the effectiveness of self-regulation, I find low levels of compliance with industry-sponsored advertising regulations. Contrary to the assumption held almost universally in the literature on ART, however, I found that clinics do not prioritize advertising their success rates. Clinics’ websites are more likely to emphasize several other attributes of care instead of their success rates. In light of the new data uncovered by the study, I conclude by offering new regulatory directions for policymakers to consider as they try to keep up with changes in the fertility business.
Tuesday, October 23, 2012
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. . . .
Saturday, August 18, 2012
DC Bar: Reproductive Technology and the Law, by Anna Stolley Persky:
Enid Abrahami, a single mother by choice, conceived her first child with her own egg and a stranger’s sperm, thanks to a fertility clinic in New York. Abrahami then gave birth to her son in Israel, where she lives these days. She had no trouble attaining her son’s American citizenship. Abrahami, who has dual Israeli and American citizenship, grew up in both New York City and Tel Aviv.
When she decided to have a second child, Abrahami found that she was having trouble getting pregnant using her own eggs. So this time she used both somebody else’s egg—called a donor egg—and sperm from the same donor used to conceive her son. Again, for her second child, a daughter, the embryo was transferred to her uterus in New York and the baby was born in Israel.
But this time, when Abrahami went to fill out the paperwork for her daughter’s citizenship, a U.S. Embassy official learned that she was a single mom and had used donor sperm. . . . Abrahami was told that she could not transfer her citizenship onto her daughter. She was told that citizenship is transferred only through DNA, and that she needed proof that at least one of the donors was a U.S. citizen. . . .
Thursday, May 10, 2012
Kara W. Swanson (Northeastern University-School of Law) has posted Adultry by Doctor: Artificial Insemination, 1890-1945 on SSRN. Here is the abstract:
In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers alike worried whether insemination using donor sperm was adultery by doctor, producing illegitimate offspring. Drawing upon the legal and scientific literatures, case law, popular sources and medical archives, I argue that insemination became identified in medicine and law as a pressing problem at mid-century after decades of quiet use because of the increasing success of the technique, increasing patient demand, and increasing use -- three interrelated trends that led to increasing numbers of babies whose origins were “in the test tube.” In examining the history of a medical procedure becoming a legal problem, I also trace the development of a medical practice in the face of legal uncertainty and the shifting control of the medical profession over assisted conception. I argue that doctors modified the way they treated patients in response to perceived social and legal condemnation of artificial insemination, keeping tight control over all aspects of the procedure, but that doctors’ persistence in meeting patient demand for fertility treatments despite such condemnation helped make artificial insemination into a medicolegal problem. Once it became identified as a medicolegal problem, artificial insemination became the subject of a broad social discussion, in which medical voices did not receive automatic deference, and medical control was challenged.
Thursday, April 26, 2012
ABC News: Teacher Fired After Receiving Fertility Treatments, by Russell Goldman:
A Catholic school teacher in Indiana is suing a diocese there, claiming that she was unlawfully terminated after school officials learned she was undergoing fertility treatments to become pregnant.
In a federal lawsuit filed in a Fort Wayne, Ind., teacher Emily Herx claimed that she was fired and told by a senior church official that her attempt to become pregnant through in-vitro fertilization made her a "grave, immoral sinner." . . .
Tuesday, April 3, 2012
Organizations Challenge Dangerous Proposed Initiative to Redefine “Person”
Originally released March 29, 2012
Corrected March 30, 2012
Robyn Shepherd, ACLU National, (212) 519-7829 or 549-2666; email@example.com
Ryan Kiesel, ACLU of Oklahoma, (405) 525-3831; firstname.lastname@example.org
OKLAHOMA CITY – A lawsuit was filed today on behalf of six Oklahoma voters – including women’s health providers – against an Oklahoma ballot initiative that would ban vital health services by granting fertilized eggs and embryos the same constitutional rights as people. The voters are represented by the American Civil Liberties Union, the ACLU of Oklahoma and the Center for Reproductive Rights.
“By their own admission, the proponents of this initiative aim to strip women and families of their established right to decide whether and when to become pregnant and carry a pregnancy to term,” said Ryan Kiesel, executive director of the ACLU of Oklahoma. “This initiative insults Oklahoma women’s intelligence and dignity by denying access to basic health services.”
If passed, the initiative would outlaw many critical reproductive health services, including all abortion care, commonly used forms of birth control, in vitro fertilization and treatment for ectopic pregnancies and miscarriages.
"It’s been nearly four decades since the Supreme Court ruled that women have the right to safe, legal abortion services,” said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. “Yet state legislatures continue to attack that right through dangerous, outrageous initiatives such as this one. This is unacceptable. We must respect a woman’s capacity to make private, personal decisions about her reproductive health with her doctor and her family.”
More information on this case can be found at: www.aclu.org/reproductive-freedom/re-initiative-petition-no-395-state-question-no-761-or-oklahoma-personhood
Thursday, February 16, 2012
Chicago Tribune/Reuters: Anti-abortion 'personhood' bill clears Oklahoma senate, by Steve Olafson:
Oklahoma lawmakers edged closer toward trying to outlaw abortion on Wednesday by approving "personhood" legislation that gives individual rights to an embryo from the moment of conception.
The Republican-controlled state Senate voted 34-8 to pass the "Personhood Act" which defines the word person under state law to include unborn children from the moment of conception. . . .
The bill text is available here.
Monday, January 30, 2012
The Washington Post - PostPolitics: Gingrich vows to ban embryonic stem-cell research, questions in vitro practice, by Karen Tumulty:
As former House speaker Newt Gingrich courts evangelical voters in advance of Tuesday’s Florida primary, he is drawing an increasingly hard line against the use of embryonic stem-cell research — a position that contrasts not only with that of former Massachusetts governor Mitt Romney, but also with statements that Gingrich himself has made on the subject in the past.
Speaking at a Baptist church in Winter Park on Saturday, the former speaker received a standing ovation when he declared that embryonic stem-cell research amounts to “the use of science to desensitize society over the killing of babies.” . . .
BBC News: Testicular zap 'may stop sperm':
A dose of ultrasound to the testicles can stop the production of sperm, according to researchers investigating a new form of contraception.
A study on rats published in Reproductive Biology and Endocrinology showed that sound waves could be used to reduce sperm counts to levels that would cause infertility in humans.
Researchers described ultrasound as a "promising candidate" in contraception. . . .
Friday, January 27, 2012
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.
Saturday, January 21, 2012
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.
January 21, 2012 in Abortion, Assisted Reproduction, Bioethics, Fertility, Mandatory Delay/Biased Information Laws, Pregnancy & Childbirth, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)
Monday, January 16, 2012
Ms. Magazine: State Ballot Initiative and Referendum Roundup:
In Florida and Montana anti-abortion initiatives or referenda will appear on state ballots in 2012. In nine additional states, initiatives or referenda to restrict women's reproductive rights may appear on the 2012 November ballot. . . .
Although no "personhood" state constitutional amendment has been approved to appear on a 2012 state ballot, such amendments are currently circulating in eight states. Anti-abortion rights groups are divided about proceeding with the personhood amendments because of the recent defeat of a personhood amendment in Mississippi and because they question whether the initiatives and referenda will be upheld in the courts. For example the National Right to Life Committee and Phyllis Schlafly's Eagle Forum appear to be opposed to this effort. . . .
January 16, 2012 in Abortion, Abortion Bans, Anti-Choice Movement, Fertility, Fetal Rights, State and Local News, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)
Monday, December 5, 2011
The New York Times Opinionator, On Abortion and Defining a ‘Person’, by Gary Gutting:
The Stone is featuring occasional posts by Gary Gutting, a professor of philosophy at the University of Notre Dame, that apply critical thinking to information and events that have appeared in the news.
The recent referendum in Mississippi showed that many Americans — including many strong opponents of abortion — are reluctant to treat a fertilized egg as a human person. They are, in particular, unwilling to extend the full protection of our laws against murder to a fertilized egg. This might seem to be just a common sense reaction to an extreme position, but rejecting the personhood position has important consequences for the logic of the abortion debate. (In formulating these logical consequences, I am not taking a position on the morality of abortion. As always, logic can only force a choice between accepting a conclusion and denying the premises from which the conclusion follows.) . . .
Tuesday, November 15, 2011
Chicago Tribune: Mississippi makes a big statement, by Leonard Pitts:
Moral clarity is one of the most seductive traits of social conservatism.
Those of us outside that ideology may struggle to untie the Gordian knot of complex moral issues, may wrestle conscience in hopes of compromise, may construct arguments in tenuous terms of, "If this, then that, but if the other thing, then …" Social conservatives countenance no such irresolution. On issue after issue — same-sex marriage, gun control, Muslim rights — they fly straight as a bullet to their final conclusion, usually distillable to the width of a bumper sticker.
So last week's election result in Mississippi comes as a seismic shock. By a significant margin — 58 percent to 42 percent — voters rejected an anti-abortion amendment to the state constitution defining the fertilized human egg as a person, with all the rights and protections attendant thereto.
. . .
Huffington Post: Lessons From Mississippi, by Jill Hanauer:
Advocates for a common-sense approach to reproductive health policy are rightfully taking pride in the defeat of the Personhood amendment in Mississippi this week. As we celebrate the defeat of this extremist legislation, it's important to remember the lessons of Mississippi going forward: that Personhood lost -- in large part -- due to highly effective messaging that framed the measure as what it actually was -- government overreach trampling on what should be personal decisions. . . .
The New York Times: Medical Nuances Drove 'No' Vote in Mississippi, by Denise Grady:
JACKSON, Miss. — When her children woke up on Wednesday morning, Atlee Breland told them, “Mama won her election.”
From her Lego-strewn living room, she had campaigned furiously to defeat an anti-abortion amendment to the state Constitution that would have declared fertilized eggs to be “persons.” She created a Web site and Facebook page that reached tens of thousands of voters.
Mrs. Breland, who proudly identifies herself as a Christian, native Mississippian and mother of three, might seem just the kind of voter who would back such an amendment. But she had needed fertility treatments to conceive her twin daughters, who are now 5, and she saw the amendment as likely to restrict in vitro fertilization and threaten the ability of women like her to have children.
The amendment was rejected by 58 percent of voters in staunchly anti-abortion Mississippi, largely on fears like Mrs. Breland’s that hinged on subtleties of medical science. . . .
Sunday, November 13, 2011
I. Glenn Cohen (Harvard Law School) has posted Regulating Reproduction: The Problem with Best Interests on SSRN. Here is the abstract:
Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to re-productive technologies? Should the state fund abstinence education?
One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal. The Article demonstrates that while parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, such justifications are problematic and misleading. The Article’s aim is nothing short of re-writing our way of thinking about the regulation of reproduction.
Monday, November 7, 2011
Spokesperson for Mississippi Personhood Intiative Admits Amendment Would Outlaw Some Birth Control Methods
The Florida Independent: Personhood USA spokesperson admits Mississippi amendment would affect birth control, by Virginia Chamlee:
Despite past statements to the contrary, some “fetal personhood” supporters are now admitting that, if enacted, their legislation would likely not only outlaw abortion, but some forms of birth control, as well.
Supporters of Mississippi’s “personhood” bill have long argued that it would only outlaw abortion, but many critics say that the vague wording of Amendment 26 (which would give fertilized human eggs legal status) would likely outlaw birth control pills. Speaking with NPR’s Diane Rehm yesterday, Personhood spokesperson Walter Hoye stated that if birth control ends the life of a “human being,” it would indeed be impacted by the measure.
When asked if there were any restrictions on birth control included in the amendment, Hoye said “no… well, yes,” but added that some forms of birth control (including the morning-after pill) would be outlawed. . . .
NPR – The Diane Rehm Show: Consequences of Granting Legal Status to a Fertilized Human Egg:
Mississippi will ask voters next week to decide whether to give legal status to fertilized human eggs. If the ballot measure is approved, abortion would become tantamount to murder. And in vitro fertility clinics and popular methods of birth control could be outlawed. Many observers deem it one of the gravest assaults on women's reproductive rights in decades. Similar efforts to redefine "personhood" are in the works in several states. Colorado voters twice defeated personhood initiatives recently. But many expect the Mississippi measure to pass. We'll talk about the latest tactics in the battle against abortion. . . .
November 7, 2011 in Abortion, Abortion Bans, Anti-Choice Movement, Assisted Reproduction, Bioethics, Contraception, Fertility, Fetal Rights, State and Local News | Permalink | Comments (0) | TrackBack (0)
Supra, the Online Companion to the Mississippi Law Journal, has published a symposium issue of short essays on the Mississippi personhood initiative. The essays are available here: Mississippi Personhood and Initiative 26 Symposium
November 7, 2011 in Abortion, Abortion Bans, Anti-Choice Movement, Assisted Reproduction, Bioethics, Contraception, Fertility, Fetal Rights, Scholarship and Research | Permalink | Comments (0) | TrackBack (0)
Richard F. Storrow (CUNY School of Law) has posted Assisted Reproduction on Treacherous Terrain: The Legal Hazards of Cross-Border Reproductive Travel on SSRN. Here is the abstract:
The growing phenomenon of cross-border reproductive travel has four significant legal dimensions. First, laws that ban or inhibit access to assisted reproductive procedures in one country lead patients and physicians to travel to other countries to acquire, to contribute to or to provide assisted reproductive services. Such laws may include provisions that criminalize those who assist or advise patients to undertake such travel. Second, the law may expressly criminalize crossing borders to obtain, to be a donor for or to perform certain procedures. Third, the law may interfere with the ultimate goal of reproductive travellers by refusing to recognize them as the parents of the child they have crossed borders to conceive. Finally, facilitating cross-border reproductive travel may expose physicians, attorneys and brokers to malpractice or other civil liability. This article explores these legal dimensions of cross-border reproductive care and uses the legal doctrines of proportionality, extraterritoriality and comity to assess the legality and normative validity of governmental efforts to curb or limit assisted reproductive practices.
Wednesday, November 2, 2011
New York Times- Op-Ed: Mississippi's Ambiguous 'Personhood' Amendment, by I. Glenn Cohen & Jonathan F. Will:
ON Nov. 8, Mississippi voters will be asked to decide on a proposed amendment to the state constitution, which would define as a person “every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”
Most of the debate on this proposal has fallen on traditional lines. In our charged political climate, that is understandable, but it is also profoundly misleading. Whether one supports abortion rights or not, there are serious issues with this amendment — not because of the principles it seeks to represent, but because, as a legal matter, it is profoundly ambiguous. . . .