Reproductive Technologies: IV. Legal and Regulatory Issues
IV. LEGAL AND REGULATORY ISSUES
Reproductive freedom is not a simple concept. Encompassing far more than abortion, it also includes the choice of whether and with whom to procreate, how many times to procreate, and by what means. It includes the choice of the social context (e.g., marital, communal, or solitary) in which the reproduction takes place and, to some extent, the characteristics of the children people will have (gender, presence or absence of certain disease). It is grounded, for some moral philosophers, in self-determination, individual welfare, and equality of expectation and opportunity (Brock).
Noncoital reproduction, that is, reproduction achieved despite the absence of sexual intercourse, allows single, homosexual, and infertile people to start and rear families. Often, it entails such controversial techniques as extracorporeal maintenance of an embryo, screening and storage of gametes, or the reproductive assistance of men and women who do not plan to maintain a relationship with the child they help to conceive or gestate.
Thus, new reproductive technologies enable individuals to exercise more reproductive choices. This, in turn, invites exploration of the depths of cultural relativism and the meaning of genetic linkage; the preference for the heterosexual couple as the paradigm for family life; the role of the state as the regulator versus facilitator of individual aspirations; and the role of the state and the professional as the gatekeeper to the technologies that permit people to circumvent infertility or conventional forms of procreation.
Under U.S. law, states can outlaw or regulate certain aspects of reproductive technologies. Areas for possible state intervention include protection of the extracorporeal embryo; protection of patients (and their resulting children) who seek to use reproductive technologies; regulation of contract (i.e., surrogate) motherhood; definition of family forms and familial relationships in light of gamete transfers and use of contract birth mothers; and limitation on commercialization of the techniques. But the extent to which states can ban or regulate noncoital reproduction depends on the extent to which procreation is protected by state and federal constitutions, and the extent to which ancillary practices, such as payment for gametes or services of a contract mother, are viewed as part of the act of procreation or as independent acts of commercial negotiation.
In the United States, the more zealously procreation is guarded by constitutional guarantees and the more broadly the definition of procreation is drawn, the more compelling and narrowly drawn must be state efforts to restrict use of noncoital procreation. Those restrictions, when they exist, will be manifested in both common law and statutory law, usually with regard to the fields of contracts, property, or family law. Because the details of such law vary tremendously from state to state, this article focuses primarily on the overarching constitutional issues that limit state policymaking and lawmaking in this field, and compares national responses.
Is There an Affirmative Right to Procreate?
The right to procreate, that is, the right to bear or beget a child, appears to be one of the rights implied by the U.S. Constitution. It is grounded in both individual liberty (Skinner v. Oklahoma, 1942) and the integrity of the family unit (Meyer v. Nebraska, 1923), and is viewed as a "fundamental right" (Griswold v. Connecticut, 1965), one that is essential to notions of liberty and justice (Eisenstadt v. Baird, 1972).
The U.S. Supreme court has not explicitly considered whether there is a positive right to procreate—that is, whether every individual has a right to actually bear or beget a child and thereby has a claim on the community for necessary assistance in this endeavor. It has, however, considered a wide range of related issues, including the right of a state to interfere with procreative ability by forcible sterilization (Skinner v. Oklahoma, 1942), the right of individuals to prevent conception or to terminate a pregnancy (Roe v. Wade, 1973; Webster v. Reproductive Services, 1989; Planned Parenthood v. Casey, 1992), and the right of individuals to rear children in nontraditional family groups (Moore v. City of East Cleveland, Ohio, 1977).
Since the 1942 Skinner decision, lower courts have accepted the notion that states may not forcibly sterilize selected individuals unless such a policy can withstand strict constitutional scrutiny. The basis for requiring this level of scrutiny is the assertion that the "right to have offspring," like the right to marry, is a "fundamental," "basic liberty." Further, the Skinner and Eisenstadt decisions arguably hold that the right to use contraception or to be free of unwarranted sterilization is an aspect of individual, rather than marital, privacy. As stated in Eisenstadt: "If the right to privacy means anything, it is the right of the individual, married or single, to be free of unwarranted government intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child" (Eisenstadt v. Baird, 1972).
But the right to privacy is no longer the primary justification for abortion rights, or, by extension, reproductive rights. The 1992 Planned Parenthood v. Casey decision specifically based its opinion on "liberty" (rather than privacy) rights, and concluded that abortion remains protected from state efforts to prohibit abortion. The emphasis on "liberty" language changes the focus of abortion rights from one of limitations on governmental power (as discussed in "privacy"-based decisions) to one of individual control of one's person. The opinion attempts to explain why abortion is an essential "liberty" for women because it permits control of one's body and one's personal destiny.
Justice Antonin Scalia's dissent mocks this attempt. After reciting the list of phrases used elsewhere by his colleagues, such as "a person's most basic decision," "a most personal and intimate choice," "originat[ing] within the zone of conscience and belief," "too intimate and personal for state interference," Scalia complains that "the same adjectives can be applied to many forms of conduct that this Court … has held are not entitled to constitutional protection—because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide" (p. 785).
Scalia's dissent highlights the potentially far-reaching implications of what the plurality has written regarding the fundamental importance of controlling one's fertility. The Casey plurality opinion lays out an argument for reexamining the 1879 Reynolds v. U.S. decision (upholding the power of the state to outlaw polygamous marriage) and the 1986 Bowers v. Hardwick decision (upholding the power of the state to criminalize homosexual behavior), a task critical to determining if states can restrict noncoital reproduction to married couples. It also lays the groundwork for cases sure to arise concerning prenatal diagnosis, sex selection, cloning, and (ultimately) parthenogenesis.
What Can States Do To Regulate Reproductive Technologies?
Even assuming that constitutional protection for procreation remains grounded in a fundamental rights analysis, possibilities remain for areas of state regulation of who may use noncoital reproduction and how they may proceed. First, many aspects of noncoital reproduction arguably do not amount to procreation, and therefore are more amenable to state control. Donor gametes and surrogacy do not permit an infertile person to procreate; rather, they allow fertile persons to reproduce without partners or to bypass the infertility of their partners.
Artificial insemination by donor (AID), for example, can be used by single or lesbian women who want to become pregnant but who find the thought of sexual intercourse with a man distasteful. Almost half the states in the United States have statutory language governing AID that appears to ignore the possibility of such a use, leaving the legal status of the donor-father unclear (U.S. Congress, Office of Technology Assessment [OTA], 1988b). Canada and France have also had national commissions recommend that single and lesbian women be barred from using donor insemination in order to conceive (Liu; McLean). Because such women could physically procreate without donor insemination, albeit with great discomfort, it can be argued that such restrictions do not impinge upon a fundamental right to procreate and are therefore potentially tolerable.
Of course, the restrictions would still be subject to challenges based on the unequal treatment of single or lesbian women as compared with the married, heterosexual population. AID for a married couple in which the husband is infertile is also nothing more than a medical alternative to the social solution of adultery; the AID itself does not enable the infertile man to procreate. Nevertheless, in Canada, France, and much of the United States, this form of AID is viewed as therapeutic, seemingly because the unit of infertility(i.e., the patient) is seen as a monogamous, married, heterosexual couple, not as an unmarried individual.
In typical surrogacy arrangements, in which the husband is fertile and the wife infertile, the surrogacy arrangement, like AID, does not permit the infertile wife to procreate, nor is the fertile husband unable to procreate without resorting to surrogacy. Rather, surrogacy allows the husband to procreate without committing adultery and with some assurance, as in the AID scenario, that the couple will be able to retain exclusive custody of the resulting child. As with AID, such a use of contract motherhood is viewed as therapeutic by many. While even this use of surrogacy has engendered opposition ranging from criminalization to mere unenforceability in countries such as Australia, Canada, England, and France, and in some portions of the United States, it has never encountered the same degree of approbation as the so-called surrogacy of convenience, in which a rearing mother finds it useful to hire someone else to carry the child (Liu; McLean).
Indeed, much of the debate surrounding the most famous surrogacy case in the United States, Baby M (1988), focused on whether the rearing mother had declined to become pregnant due to career concerns and undue worry about her health, or rather due to legitimate concern that pregnancy would seriously worsen her multiple sclerosis. This debate exemplifies the increased willingness of the American public to regulate or ban surrogacy when it is not perceived as a cure for a medical problem such as infertility, a sentiment reflected in the constitutional analysis that permits greater state regulation where the right to procreate is not directly implicated.
Egg donation to a woman who cannot ovulate but who can carry to term does not technically allow the recipient to procreate, as she will not reproduce in the genetic sense. But it does allow her to experience pregnancy and childbirth, which for women are intimately associated with genetic procreation. In terms of both biological significance (gestation is, of course, a biological activity) and emotional impact, this would seem to be close to procreation, even in its more narrow definition. Thus, it is difficult to categorize this activity in terms of whether it allows an infertile person to procreate.
Despite this fact, there is considerable hesitation about permitting egg donation. Whereas sperm donation is widely accepted, egg donation entails significantly more medical discomfort and even risk on the part of the donor. This in turn raises the specter, at least in the United States, of increased payments for the donation. For some, such payments represent an undue incentive to undergo medical risks, as well as an unacceptable commercialization of human gametes. Nevertheless, at least in California, there is a thriving egg donation practice.
Even those aspects of noncoital reproduction that clearly involve procreation can be regulated or banned, if there is a sufficiently compelling state interest. It is true that artificial insemination by husband (AIH), and in vitro fertilization (IVF) using a couple's own gametes (whether or not a contract mother is hired to carry the child to term), permit an otherwise infertile man or woman to procreate genetically. By bypassing the fallopian tube defect or permitting intrauterine insemination of the husband's concentrated semen, these techniques actually help infertile individuals to participate in the act of reproduction. But a compelling state interest in the protection of embryos and fetuses, for example, could justify significant restraints on even AIH and IVF.
Is There a Compelling State Interest in Embryos and Fetuses?
The most likely claim for a compelling state purpose to outlaw or regulate IVF is that of protection for the extracorporeal embryo, whether or not accompanied by a contract with a gestational surrogate.
The Webster v. Reproductive Services (1989) and Planned Parenthood v. Casey (1992) decisions indicate that the U.S. Supreme Court is now quite tolerant of symbolic legislative statements concerning the sanctity of embryonic life and of significant restrictions on the exercise of constitutionally protected rights, such as abortion, in the name of protecting these early life forms. It seems likely that the court would uphold state statutes, such as the one in Louisiana that regulates management of extracorporeal embryos. Such restrictions may include prohibiting nontherapeutic experimentation on the embryo, embryo discard, and unnecessary creation of surplus embryos for the purpose of experimentation. It might also attempt to regulate transfer of embryos. By declaring that life begins at conception, as was done in the Missouri statute upheld in Webster, and by equating the rights of embryos to the rights of children, states could demand that embryo transfers be viewed as adoptions.
This was the approach taken by the trial court in the case of Davis v. Davis (1992), a Tennessee divorce case that struggled with determining the legal status of several frozen embryos that were left over from unsuccessful IVF treatments and became the subject of a divorce dispute. Characterizing the question as one of child custody, and viewing the embryos as children, the trial court then awarded custody to the parent whose actions would be in the best interests of the embryos. By assuming that embryos have "interests," and then defining one of those interests as an interest in being born, the trial court awarded the embryos to the wife, who intended to have them implanted in her womb in the hope of bringing them to term.
By contrast, the appellate court backed away from the characterization of the embryos as children and the resulting "best interests" analysis. Without ever explicitly calling the embryos property, the court proceeded to treat them as property held jointly by the couple, and thereby concluded that disposition of the embryos must be by agreement because each party had an equal property interest in them.
The Tennessee Supreme Court reviewed available models for disposition of the embryos when unanticipated contingencies arise. Those models range from a rule requiring, at one extreme, that all embryos be used by the gameteproviders or be donated for uterine transfer (such as is required under an as yet unchallenged Louisiana statute), and, at the other extreme, that any unused embryos be automatically discarded. The Tennessee Supreme Court, when it considered the Davis case, was aware of the Planned Parenthood v. Casey (1992) decision, which reiterated the Roe (1973) holding that a state may express an "interest" in a fetus. Unfortunately, like Roe, Planned Parenthood v. Casey fails to identify what this interest might be or why it arises, leaving the Davis court with little guidance on how to extend the state interest argument to nonabortion settings.
Numerous commentators have struggled to identify this state interest (Joyce; Tooley). Many begin with the premise that a sufficiently detailed biological understanding of embryo potential will yield an answer:
[E]very living individual being with the natural potential, as a whole, for knowing, willing, desiring, and relating to others in a self-reflective way is a person. But the human zygote is a living individual (or more than one such individual) with the natural potential, as a whole, to act in these ways. Therefore the human zygote is an actual person with great potential.… (Joyce, p. 169)
But others argue that the genetic blueprint of a person cannot be entitled to the same moral standing as that of the person himself or herself, because any inherent "right" to live is premised on the idea that it is in the "interest" of the entity to continue existing (Tooley). Where, as with a zygote, there is no self-concept, there can be no "interest" in continuing to exist, no "desire" to continue to exist, and therefore no "right" to continue to exist.
Such an argument refutes the Davis trial court's treatment of the frozen embryos as children with an interest in being brought to term. But the appellate court's assumption that they must therefore be treated as property is equally unjustified. Society may choose nonetheless to grant rights to the zygote or fetus, for any number of reasons, if such steps do not unduly impinge on another liberty recognized by society, such as the liberty of men and women to control their reproductive futures.
In fact, Justice John Paul Stevens takes on this issue in his concurring opinion in Planned Parenthood v. Casey:
Identifying the State's interests—which the States rarely articulate with any precision—makes clear that the interest in protecting potential life is not grounded in the Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns. Many of our citizens believe that any abortion reflects an unacceptable disrespect for potential human life and that the performance of more than a million abortions each year is intolerable; many find third-trimester abortions performed when the fetus is approaching personhood particularly offensive. The State has a legitimate interest in minimizing such offense.… These are the kinds of concerns that comprise the State's interest in potential human life. (Planned Parenthood v. Casey, 1992, 120 L. Ed. 2d 674 at p. 739)
Struggling with the task of expressing a state interest in embryonic life without unduly impinging upon the reproductive rights of adult men and women, the Tennessee Supreme Court in the Davis case concluded that embryos are neither children nor property, but occupy an intermediate status based on their potential for development. This, in turn, would not convey a right to be born under either state or federal constitutional law but would demand some protections. These include implantation where possible, freedom from unnecessary creation or destruction, and dignified management.
The Tennessee court's characterization of an intermediate status for embryos is the most intriguing part of the opinion, as it did not present a coherent theory of that status and its implications. There are, of course, models of inter-mediate property status. Animals, for example, are treated as property with no "right to life," but at the same time are protected from cruel and painful treatment by their owners. Works of art may be owned, but "moral rights" possessed by the artist in some jurisdictions prohibit defacing or destroying the art. Land may be owned subject to numerous restrictions on use that would permanently destroy some publicly valued attribute. Which, if any, of these models describes the intermediate status held by the embryos? And on what basis? This is indeed the key question left totally unanswered by the Tennessee court. As it stands, though the opinion gives some narrow, nearly regulatory guidance to IVF clinics, it offers little to those wondering in general whether other restraints on embryo creation and management are in order.
Other countries have struggled with the same dilemma. Most often, as in England and Australia, the compromise solution is chosen, in which limited experimentation is permitted on unavoidably abandoned embryos. Deliberate creation of embryos for the purpose of experimentation is frowned upon. Occasionally a stricter view is adopted, as in Germany, where embryo experimentation is simply banned. Generally, however, where embryos are to be created in order to permit implantation and gestation, even extracorporeal maintenance or embryo freezing is tolerated(U.S. Congress, OTA, 1988b; Liu; McLean).
What is the State Interest in the Children Conceived Noncoitally?
Related to state interest in the protection of extracorporeal embryos is its interest in protecting the children born following noncoital conception. This takes its most frequent form in suggestions for limiting use of these technologies to married couples, on the theory that being born into a single-parent home is harmful to a child. On this basis, almost twothirds of physicians surveyed in 1987 and a number of states either explicitly or implicitly deny artificial insemination services to unmarried women (U.S. Congress, OTA, 1988a, 1988b).
While some may deplore this practice, the fact that unmarried persons are not considered a "suspect" class in constitutional jurisprudence (i.e., they are not considered a class in need of special protection from discriminatory legislation because they are fully able to use the political system to protect their interests), means that such discriminatory practices are largely immune to constitutional challenge as an abridgment of their right to equal protection of the laws. Unless procreation, and specifically the use of artificial insemination, is viewed as a fundamental right, such persons will be limited to challenges under state and federal civil rights statutes in their pursuit of equal access to these technologies.
To the extent that the right to procreate implies a right to create a family, constitutional law from the nineteenth century remains unchallenged in its support for criminalization of family forms, such as polygamy, that fly in the face of Western European tradition. While there have been twentieth-Century cases in support of broadening the definition of family, there has not yet been any case in which the right to marry is extended beyond a heterosexual couple. Thus, whatever the right to privacy entails, it does not appear to guarantee the right to form familial relationships that achieve the same legal recognition as that bestowed by marriage.
Generally, current interpretations of constitutional law appear to support the assertion that for married couples there is a right to privacy embedded in the wording and history of the constitution and that such privacy extends to reproductive decision making free from unwarranted governmental intrusion. While case law suggests that individuals are entitled to this privacy in equal measure, judicial hostility to claims of a right by homosexuals to marry or engage in sexual activity (Bowers v. Hardwick, 1986), by minors to have unrestricted access to abortion (Hodgeson v. Minnesota, 1990), and by physicians to give full information concerning abortion (Rust v. Sullivan, 1991) suggest limitations on Supreme Court extension of this right.
Indeed, much of the state activity concerning contract motherhood has been directed at protecting the children conceived through these arrangements. In the event a surrogate changes her mind, a custody dispute can break out between the birth mother and the genetic father. Reluctant to extend parental status to the adopting mother without terminating the parental status of the birth mother, but also determined to see the child placed in the safest home, courts have been in a quandary. Most often the solution has been to refuse to use the contract as the basis for a custody decision, and instead to rely on traditional family notions of child welfare. Next, courts have generally refused to terminate the birth mother's status as a presumptive legal parent. But despite these findings, most courts also award custody to the genetic father and his wife, as it is this couple who is usually better able financially and socially to convince the court that they can provide a secure home for the baby (U.S. Congress, OTA, 1988b; McLean).
Other Concerns Regarding Contract Motherhood
Another state interest in surrogacy stems from the fact that the contracts typically entail promises by the contract mother to refrain from certain behaviors such as drinking, smoking, or the use of illicit drugs, as well as affirmative promises to follow prescribed prenatal care regimes and to undergo prenatal testing for fetal health. Enforcing such contract promises raises constitutional issues, requiring a relinquishment of significant autonomy on the part of the contract mother. This is particularly true with regard to promises to follow prescribed medical care, which may entail submission to invasive tests and even surgery, in the case of cesarean sections.
Surrogacy also raises the specter that the hiring couple might gain what amounts to a property interest in the body of the contract mother. This is particularly true where gestational surrogacy is employed, and the child the contract mother is carrying is genetically related to the hiring parents but not to her. At least one court has been known to issue a "prenatal adoption" order, in which the hiring husband and wife were declared the legal parents of the fetus still within the gestational mother's body (Smith v. Jones, 1988). In such a case, the hiring parents would have a legally recognized interest in the development of the fetus. Indeed, as parents they might have a legal duty to protect the fetus from harm, as has been confirmed by cases that hold pregnant women criminally liable for behaviors that threaten fetal health. How to protect fetuses while not compromising the physical integrity and legal autonomy of the gestational mother poses a significant constitutional challenge.
Gestational surrogacy also raises fundamental questions about the definition of parenthood, particularly of motherhood. While the law has consistently given preference to biological parents over nonbiological parents, with specific exceptions carved out for adoption and AID, it has never before been forced to consider the definition of biological. As of the mid-1990s, only one state has considered the problem. In California, a dispute developed between a couple (the Calverts) whose gametes had been used to conceive a child who was subsequently brought to term by a hired gestational contract mother named Anna Johnson. The trial and appellate courts both concluded that the genetic relationship, which defines "natural" parent for men, would define the "natural" parent for women. The two lower courts specifically rejected the notion that gestation is a biological relationship formed by the indisputable fusing of maternal and fetal well-being during the nine months of pregnancy that could equally well form the basis for defining the "natural" mother.
California's lower court decisions in Johnson v. Calvert (1991), stating that a gestational mother is no more than a foster parent to her own child, are almost without precedent worldwide. Only Israel, bound by unique aspects of religious identity law, has adopted a genetic definition of motherhood. Every other country that has examined the problem—including the United Kingdom, Germany, Switzerland, Bulgaria, and even South Africa with its race-conscious legal structure—has concluded that the woman who gives birth is the child's mother.
The California Supreme Court's 1993 opinion on Johnson v. Calvert declined to find either the genetic or the gestational mother to be the definitive "natural" parent. Instead, it chose to view either relationship as a presumptive form of natural parenthood. Then it specifically declined the invitation to have the law reflect what had actually happened, that is, the birth of a child with two biological mothers, one gestational and the other genetic. Agreeing that acknowledging more than one natural mother would be, as the trial court stated, a "recipe for crazymaking," the California Supreme Court said that whichever of the two biologically related women had been the intended mother would then be declared the "natural" mother. It continued by stating that in the event that the gestational and genetic mothers are not the same person, and that the intended mother is neither the genetic nor gestational parent, she would nonetheless be considered the "natural" mother. Thus the court avoided what is at base the most interesting question raised by the use of reproductive technologies: the possibility of declaring more than one woman to be a "natural" parent of a child. To do so, of course, would require escaping the confines of the heterosexual couple as the paradigm for a family and acknowledging that some people become parents by virtue of genetic connection, others by gestational connection, and still others by contract—whether a marital contract with a genetic or gestational parent, or a reproductive technology contract that creates relationships with children conceived with donor gametes or carried to term by contract mothers.
What is the State Interest in Access to Quality Services?
A final and overarching area of state interest lies in consumer access and protection. Only a handful of states have legislation mandating insurance coverage for the most expensive of these technologies, IVF. Those states, including Arkansas, Hawaii, Maryland, Massachusetts, Texas, and Wisconsin, have responded to political pressure from organized medicine as well as from infertility support groups. But no state has yet asserted that insurance coverage is required by virtue of the fact that procreation is a fundamental right that may, for some people, be exercised only when using an expensive technology. Indeed, in the context of abortion services, the Supreme Court has made clear that states may forbid Medicaid or other public funding of such services, although they are clearly linked to the exercise of a fundamental right. In fact, the Webster decision upheld a state prohibition on the use of public facilities for abortion services, even when no public funds are used.
Where IVF and other reproductive technology services are being provided, however, the state may well choose to regulate them for the sake of protecting patients from unscrupulous practices. These may include misleading advertising, inadequate facilities, insufficiently trained personnel, and negligent screening of gamete donors for genetic and infectious diseases that might be transmitted to recipients. Even in the exercise of a fundamental right, the state may enforce regulations designed to protect the patient.
Another consumer issue involves the regulation of commercialization of reproductive technologies. Although sperm donation has continued apace in countries where no payment is permitted, most commentators agree that the availability of donor gametes and contract mothers in the United States would be severely reduced if commercialization were prohibited. Nonetheless, even when viewing access to reproductive technologies as an exercise of freedom to procreate, several state courts have concluded that there is ample state authority to prohibit commercialization (Doe v. Kelley, 1981; Baby M, 1988). The basis for this conclusion can vary. One line of argument, focusing on surrogacy, characterizes it either as baby-selling or the sale of parental rights, both of which traditionally have been forbidden despite significant libertarian arguments in favor of free markets for both. These prohibitions on selling children or parental rights would easily extend to prohibitions on the sale of embryos, if embryos are characterized as children. Prohibitions on the sale of semen and ova probably could be justified on the same basis as the current prohibitions on organ sales, despite the same line of libertarian arguments.
Other arguments in favor of prohibiting commercialization focus on the effect such activities have on public morals, on the creation of property interests in the bodies of others, and on the fear that the creation of an industry surrounding the sale of gametes, embryos, and reproductive services will create a class of professional breeders. A 1987 survey of surrogacy brokers by the OTA revealed significant discrepancies in economic and educational backgrounds of those who hire contract mothers and those who work as contract mothers (U.S. Congress, OTA, 1988a), leading to the conclusion that the two groups would be unlikely to wield equal bargaining power during the preconception contract negotiations or during postbirth custody disputes.
All of these arguments would probably fail if subjected to the strict scrutiny brought to bear on state interference with a fundamental right. But the reluctance of U.S. courts to view commercialization of reproductive services as an expression of procreative freedom reduces the degree of scrutiny to which state restrictions are subjected. Any rational state purpose will suffice if the restriction interferes with a privilege rather than a fundamental right.
The legal and regulatory issues surrounding reproductive technologies concern the ability of a government to ban or restrict noncoital reproduction because it may harm embryos, children, consumers, or public morals. Where governments choose not to ban the practice, they may wish to regulate it, for example, by limiting what types of prospective parents may use it, which adults will be related to the resulting children, and what kinds of ancillary practices—such as research or commercialization—will be permitted. In the United States, the details of such regulation are a function of state legislation and the resolution of novel cases by the courts. But the federal Constitution places significant limits on how far such legislation or judicial lawmaking may interfere with the opportunity of individuals to exercise procreative choice.
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SEE ALSO: Abortion; Adoption; Cloning; Embryo and Fetus; Feminism; Fetal Research; Genetic Counseling; Genetic Testing and Screening: Reproductive Genetic Testing; Healthcare Resources, Allocation of: Microallocation; Law and Bioethics; Maternal-Fetal Relationship; Moral Status; Population Ethics; Sexism; Transhumanism and Posthumanism;Women, Contemporary Issues of; and other Reproductive Technologies subentries
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