Future Choices: Assisted Reproductive Technologies and the Law
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Introduction and Summary
In our modern world, sex is no longer the exclusive method for humans to reproduce. A new group of medical options, known as “assisted reproductive technologies,” are challenging our understanding of parenthood and biological relationships.
Louise Brown, the world’s first “test tube baby,” was born in 1978. Since then, the field of assisted reproduction has taken off, bringing increasingly new and innovative ways to create children—as well as increasingly more complex family relationships and ethically fraught medical practices.
The relationship between technology and the law in this context is symbiotic. If we think of the new technologies as plants, growing toward the sky and leading us into new medical, scientific, and ethical realms, then the legal terrain is the soil, dictating which practices can develop and thrive and which must wither away. Every decision to regulate or not creates unique incentives and disincentives for the fertility industry and those it serves.
For now, the fertility industry remains largely unregulated in the United States. Where regulation of these technologies has occurred, however, it has had real-life consequences for thousands of people and ripple effects on multiple areas of the law, from adoption to abortion, from health insurance to inheritance.
While some states have passed laws that indirectly affect the practices of fertility clinics, legislatures and courts have focused more on the ramifications of these procedures. Who are the legal parents of a child who was created by the efforts of five people—two genetic donors, one gestational mother, and two “intended” parents who set it all in motion? In a custody dispute over a frozen embryo, what principles of law should apply—property, contract, family, constitutional, or some combination thereof?
Assisted reproductive technologies bring to the fore important questions about who we are as individuals and families and who society deems entitled to reproduce and parent.
Assisted reproductive technologies bring to the fore important questions about who we are as individuals and families and whom society deems entitled to reproduce and parent. And these questions are not going to go away. While some might like to stop the clock so they can hash out the ground rules, others keep right on playing.
The latest case in point: In January 2007, a team of doctors announced plans to undertake the first uterine transplant in the United States.2 Nearly every day, a story comes out about new technologies and their impact on the families who have used them.
Those who seek to use these technologies include those who are infertile for both medical and social or situational reasons. Medical infertility affects about 10 percent of the reproductive age population—approximately 7.3 million people—and strikes people of all socioeconomic backgrounds. Infertility affects men and women equally: men and women each account for 35 percent of infertility cases, 20 percent of cases result from combined problems in the woman and the man, and in 10 percent of cases the cause of infertility cannot be identified. Although age can be a factor in infertility, sexually transmitted infections, exposure to certain chemical agents, tobacco and alcohol use, and excessive weight gain or loss are all risk factors for infertility as well.
In addition to those who experience physiological obstacles to conceiving or maintaining a pregnancy, those who are physically capable of reproducing but do not have a partner of the opposite sex with whom to reproduce are increasingly taking advantage of assisted reproductive services. They include lesbian, gay, and transgender couples as well as single individuals of any sexual orientation or gender identity.
Where people line up along the political spectrum in their opinions about assisted reproductive technologies is not always where one might expect. A conservative who previously believed life begins at conception may decide that it does not begin until implantation once he and his wife elect to undergo in vitro fertilization. A progressive who ardently defends the right to have an abortion for any reason may not believe there is a right to screen and discard embryos that have unwanted characteristics.
The disputes described throughout this paper reveal the painful and emotionally fraught controversies that can arise when assisted reproductive arrangements do not go as planned. But as a political issue, assisted reproductive technologies provide our society with the opportunity to have thoughtful, respectful debates about a whole host of critical questions, from how we define family to when we think human life begins—deeply felt beliefs that in other contexts have proven to be quite volatile and polarizing.
Given the novelty of assisted reproductive technologies and the absence of entrenched positions on what services should be permitted or prohibited and under what circumstances, there is reason to hope that the discussion in this context can be civil and productive, perhaps even changing the way we think about our more settled positions and helping us better understand others’ perspectives on more familiar political topics.
The questions about assisted reproduction come at a time when various groups within the progressive movement are making a concerted effort to work together on issues of common concern and speak with a more unified voice on the pressing topics of the day. All members of the progressive movement have a stake in what types of assisted reproductive technologies are available, to whom they are available, and how they are used—especially the reproductive rights, health, and justice community; the LGBT (lesbian, gay, bisexual, transgender) community; the disability rights community; the environmental community; and the economic, racial, and social justice communities. It is critical that the groups who focus on these issues begin to address assisted reproduction in their work.
Ultimately, Americans of all viewpoints will be challenged by the questions raised by assisted reproductive technologies. To that end, the Center for American Progress has prepared this report so that people can become familiar with some of these technologies, understand how the law has developed in this area thus far, and ask how we want to proceed in the future.
We see this work as a natural sequel to our paper, “More than a Choice: A Progressive Vision for Reproductive Health and Rights.” In that paper, we discussed a very comprehensive agenda, which included cautionary tales and aspirational goals regarding assisted reproduction. We hope that “Future Choices” will lay the groundwork for the progressive movement to make hard but essential decisions about how to move forward in this complicated field.
Given that progressivism embodies an openness to change, a healthy respect for facts and nuanced arguments, and a drive for pragmatic solutions, the progressive movement can lead the way in forging just policies regarding these new ways of creating families. As we seek to answer the numerous questions raised by the few laws governing assisted reproduction, it may be useful to keep in mind the following progressive values:
- The right to privacy
- Procreative liberty
- Social justice
- The health and well-being of women and children
- Equality of the sexes
- Equal opportunity for parenting by people of all backgrounds
- Equitable access to health care
- Respect for moral and autonomous personal decisions
- Cautious optimism with regard to scientific progress
- Regard for biological and genetic diversity
- Evidence-based policymaking
The policy decisions we must make are difficult and may reveal tensions among our sometimes competing interests, but the process of developing our positions ultimately should help us clarify our values and priorities, make the progressive movement stronger overall, and, most importantly, improve people’s lives. In this paper, we first provide a basic overview of assisted reproduction. Then, we address three primary areas in which legislators and courts have already spoken to some degree—health insurance coverage, embryo disposition, and parentage determinations—and examine the policy implications that their decisions create.
- Download the full report (pdf)
- Section 1: Insurance Coverage of Infertility Treatments
- Section 2: Disposition of Frozen Embryos
- Section 3: Parentage Determinations
- Appendix: Comprehensive Guide to State Surrogacy Laws
- Event Video: Future Choices: Assisted Reproductive Technologies and the Law
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Director, Women's Health & Rights Program