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Health Law
University of San Diego School of Law
Fox, Dov

Health Law and Reproduction Outline

Spring 2014

A. Introduction

a. Wanting Babies like themselves, Sanghavi (Blackboard)

i. deliberately choosing deaf child

ii. Question of ethics of IVF

iii. Argument: better than the alternative which is not existing

iv. Counter: Slippery Slope

v. Non Identity problem: Idea that something cannot be harmful if the alternative is not existing.

b. Deaf Lesbians, “Designed Disability”, Savulescu (Blackboard)

i. Fundamental right to procreation

1. Issues: Right to refuse procreation? What is procreation?

c. Infertility and Assisted Reproductive Technologies

i. Glossary with terms and abbreviations at the end of the book

ii. Infertility: When natural Conception does not occur

1. Inability to carry an embryo and then later a fetus to full term.

2. Causes of Infertility

a. Assisted Reproductive Technologies: Analysis and Recommendations for Public Policy (P. 11)

i. The Female Reproductive Process : Where problems occur

1. Damaged or missing ovaries.

2. Hormonal or Immunological problems

3. Blockages that keep the embryo from reaching the uterus can result in an ectopic pregnancy

4. Many fertilized eggs fail to implant

a. Damage to uterine lining

ii. The Male Reproductive Process: Where Problems Occur

1. Production of insufficient numbers of sperm or no sperm at all

a. Conditions that damage the testes

2. Inadequate or mistime production of male hormones

a. Can cause problems in sperm production and sexual functioning

3. Missing or obstructed conduits at any point along the male genital tract can prevent sperm from being delivered.

3. Incidence of Infertility

a. “infertility” is a medical diagnosis that follow from a specific observation: the failure to conceive after one year of unprotected intercourse.

iii. Judicial Perspectives on the Modern Role of Reproduction : Bragdon v. Abbot (P. 18)

1. Facts: Abbott told to go to hospital to get cavity filled, believes it’s because she revealed she’s HIV positive, so she sued under ADA

a. assume: she was discriminated against in place of public accommodation.

2. Issue: Does HIV status constitute a disability?

3. Rule: Definition of disability (P. 19)

a. A physical or Mental Impairment that substantially limits one or more of the major life activities of an individual;

b. A record of such an impairment or

c. being regarded as having such an impairment

4. Reasoning: Part 1 is met, clearly is an impairment.

5. Holding: HIV is a disability – because of it she cannot reproduce which is a major life activity.

a. Risks of giving disease to your partner and to future children and essentially putting them at risk of death.

6. Dissent: Reproduction is not an essential life activity.

a. Defines “major” differently. There are plenty of people who cannot reproduce for other reasons and they aren’t covered by ADA.

iv. Assisted Conception

1. A Brief history of ART

2. Human Artificial Insemination

a. Introduction

i. Artificial Insemination by Donor gained popularity and practicality following reports of using stored frozen semen in 1953. With Freezing, or cryopreservation, of sperm, a woman could select a donor who could, over a relatively short period, produce enough sperm to be stored for current and future use.

ii. Created a family law scenario that was at the time controversial. Enabled a married woman to give birth to a child who was not the biological child of her husband. This raised the possibility that the child would be illegitimate.

b. Gursky v. Gursky (P. 29)

i. This case was brought under domestic relations law aka family law. The holding is found through contract law.

ii. Facts: Husband and Wife agreed that Wife would be artificially inseminated with semen of a third party. Husband promised to pay all expenses involved. A contract was signed for waiver of liability and for medical and/or surgical treatments. Birth certificate of child lists them as the parents.

iii. Issue: Whether or not a child conceived by means of artificial insemination of a married woman through the use, with the husband’s consent, of semen contributed by a donor other than the husband is legitimate.

iv. Holding: The child is not the legitimate issue of the husband. However, husband’s declarations and conduct, including written “consent” of the procedure, implied a promise on his part to furnish support.

v. Sperm Donation, Issue is whether husband would agree to donor insemination/have to provide child support

vi. Rule: Brought under domestic relations law – family law

3. Conception in the laboratory – In Vitro Fertilization

a. Investigating the possibility of conception outside the body

i. Experiments with IVF began on animals and then the technology transferred to humans around the 1970’s.

1. Opposition mounted: people considered it unethical

ii. To date, it is estimated that more than 5 million children have been born using IVF and the numbers continue to grow.

b. Advances in IVF and the Future of ART

i. IVF remains the mainstay of ART medicine, with the past 35 years bringing refinements and improvements to the process.

1. Turned to freezing methods

ii. Intracytoplasmic Sperm Injection

1. Injection of a single sperm into the center of an egg, making it possible for men with low sperm counts to become fathers.

c. For glossary of reproductive technology terms see P. 39

B. Constitutional Jurisprudence and the Right to Reproduce

a. Traditional Reproduction as a Fundamental Right

i. Establishing Reproduction as a Fundamental Right

1. Skinner v. Oklahoma (P. 87)

a. US Supreme Court

b. Holding: The Court struck down a law requiring sterilization of people convicted three times of certain kinds of crimes.

i. Compulsory sterilization could not be imposed as a punishment for a crime, on the grounds that the relevant Oklahoma law excluded white-collar crimes from carrying sterilization penalties.

c. Possible interpretations of the right in skinner

i. the right in skinner applies narrowly just to law against sterilization

ii. not just about sterilization, but saying that the government cannot restrict the reproductive right of citizens it regards as less desirable

1. equal protection analysis

iii. Reproduction is one of the great civil rights of man and Skinner is protecting that fundamental right

d. Reasoning: Court recognized marriage and procreation as fundamental rights, and applied strict scrutiny equal protection review. They claim the legislation runs afoul of the equal protection clause, and that we are dealing with one of the basic civil rights of man – this would cause irreparable injury and “he is forever deprived of a basic liberty”

2. Skinner legacy/Main Point: Establishment of procreation as a fundamental right, requiring the government to present a compelling interest to justify any infringement.

a. Skinner is the only Supreme Court precedent to consider the positive right to procreate. Every other high court analysis of procreative liberty involves the right to avoid procreation – either through the use of contraceptives or abortion.

b. The fundamental right to procreate established in Skinny has been reaffirmed by the Court on numerous occasions.

3. Equal Protection v. Due Process

a. The act was found unconstitutional as violating equal protection because it discriminated among people in their ability to exercise a fundamental liberty.

b. Usually equal protection is used to analyze government actions that draw a distinction among people based on specific characteristics – such as race, gender, age, disability etc. However, sometimes equal protection is used if the government discriminates among people as to the exercise of a fundamental right.

i. Typically you would use due process for violating a fundamental right (Life, liberty, property etc.) but the effect is the same in the Skinner case so it doesn’t really matter.

4. Practice Question: Does current case law governing disposition of frozen embryos upon divorce violate equal protection by infringing on the rights of infertile women to exercise their fundamental right? (see P. 91 for more)

ii. The Right to Avoid Procreation

1. Griswold v. Connecticut (P. 100)

a. Privacy case holding that it is unconstitutional to limit use of contraception

b. Reasoning: There are zones/spheres of privacy, included in this zone is right to use contraception

c. dealing with married persons, i.e. “sacred married bedroom”

2. Eisenstadt v. Baird (P. 106)

a. The right in Griswold is expanded to unmarried persons

i. “It is true that in Griswold the right of privacy in question inhered in the marital relationship… If the right of privacy means anything, it is the right of the individual, marr

New Reproductive Technologies” By John Robertson (P. 131)

a. Procreative liberty protects a broader sphere of conduct or actions than simply abortion or the right not to be sterilized, but the scope hasn’t been defined.

b. Two types of Procreative Liberty

i. Avoiding Reproduction: The liberty not to reproduce

1. Legal Status of Avoiding Reproduction

a. Griswold: Right to use contraceptives

b. Casey and Roe v. Wade: Right to terminate pregnancy up to viability

c. Once conception through sexual intercourse has occurred, the father has no right to require or prevent abortion, and cannot avoid rearing duties of financial support once birth occurs.

ii. The Freedom to Procreate

1. Freedom to have children if one chooses

2. Involves the freedom to engage in a series of actions that eventuate in reproduction and usually in child rearing.

3. The right to reproduce and noncoital technology

a. An entirely different set of concerns arises with noncoital reproductive techniques.

b. It is difficult to show that the alleged harms of noncoital reproduction are sufficient to justify overriding procreative liberty.

4. Are non coital technologies unethical?

a. Many people have serious ethical reservations.

5. Legal Status of the Right to Reproduce

a. Skinner v. Oklahoma: Procreation is a basic civil right

b. Eisenstadt v. Baird: “if the right of privacy means anything… free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

6. Legal Status of Noncoital Reproduction

a. Law has not dealt with legal right of infertile persons to procreate, yet the principles that underlie a constitutional right to reproduce would seem to apply to the infertile as well.

i. Some have challenged this notion, arguing that here is no legal right to reproduce if one lacks the physical ability to do it.

b. Use of a surrogate should also presumptively be protected, since it enables an infertile couple to have and rear the genetic offspring of both husband and wife.

c. If procreative liberty is taken seriously, a strong presumption in favor of using technologies that centrally implicate reproductive interests should be recognized

2. Procreative Liberty Questions

a. Does it only protect decisions about when, how, with whom to have a child but not what kind of child to have?

b. Does it protect those decisions and also limited other decisions like getting information about whether the child will have a genetic disease?

c. Does it include the right to get information about potential embryos and choose among them?

d. Does it cover genetic engineering?

e. Is there a difference between the right to choose to have a child and the right to choose what kind of child to have?

iii. Arguments against recognizing ART as a Fundamental Right

1. “Constitutional Misconceptions” By: Radhika Rao (P. 138)

a. A response to “Children of Choice” by Robertson

b. Global Constitutional Principles are ill-suited to resolve the problems posed by the new reproductive technologies.

c. A Constitutional Right to Procreate by any Means Necessary

i. Robertson’s principle of procreative liberty appears to possess no logical stopping point, expanding to the outer limits of technological possibility and human ingenuity.

d. Constitutional Law Critique

i. Constitutional Right to use a wide variety of reproduction technologies to have offspring is based in Skinner, but Skinner is too weak a reed to carry so much constitutional weight.