Law Commons^™

Disposition Of Frozen Preembryos In The Case Of Divorce: New York Should Implement A Modified Mutual Contemporaneous Consent Approach, Kasey Bray

Touro Law Review

No abstract provided.

Why New York Should Legalize Surrogacy: A Comparison Of Surrogacy Legislation In Other States With Current Proposed Surrogacy Legislation In New York, Briana R. Iannacci

Touro Law Review

No abstract provided.

Against Seminal Principles: Ethics, Hubris, And Lessons To Learn From Illicit Inseminations, Jody L. Madeira, Steven R. Lindheim Md, Mark V. Sauer Md

Articles by Maurer Faculty

This short essay addresses the ethical implications of Illicit inseminations, instances of fertility fraud in which a physician uses his own gametes to impregnate a patient.

The Crazy Quilt Of Laws: Bringing Uniformity To Surrogacy Laws In The United States, Makenzie B. Russo

Senior Theses and Projects

Modern technology and innovative procedures have opened the possibility of parenthood to a variety of people who can’t have children of their own—single people, people with medical issues or infertility problems, same-sex couples and other nontraditional families. The demand has spawned a proliferation of new businesses, including fertility clinics, surrogacy agencies, and online brokers specializing in matching Indian- or Ukrainian-based surrogates for prospective parents who have been confronted with surrogacy in the U.S. being either unaffordable or illegal in their home state. Since the 1980s, surrogacy has swept the nation and helped thousands of individuals realize their dream of raising …

Zygote Zeitgeist: Legal Complexities In The Expanding Practice Of Embryo Donation, Noah Geldberg

Loyola of Los Angeles Law Review

In recent decades, individuals and couples facing the issue of infertility have been able to achieve parenthood through advances in assisted reproductive technology (ART), such as embryo donation. This Article evaluates the current law governing embryo donation, considers the different approaches courts and legislatures have taken to regulate embryo donation, and advocates for an approach that best balances the policy arguments underlying those approaches. Ultimately, this Article argues that contract law, rather than laws surrounding adoption, should govern embryo donations. This Article further argues that state legislatures should clarify the effectiveness of contract law within the field of embryo donation …

The Scramble To Promote Egg Donation Through A More Protective Regulatory Regime, Jacob Radecki

Chicago-Kent Law Review

Egg “donation” is a burgeoning industry in the United States. Fertility clinics capitalize on financially needy college students by advertising substantial financial benefits; particularly gifted women may receive thousands of dollars for selling their eggs. Rosy advertisements portray a well-paying procedure that also helps bring a child to a loving parent. Yet these descriptions mask significant potential harms. With respect to known problems, hormone regimens may cause ovarian hyper-stimulation syndrome, which in the most severe cases can lead to infertility. In terms of unknown risks, anecdotal evidence suggests that the long-term side effects of egg extraction may include cancer. The …

Maria’S Law: Extending Insurance Coverage For Fertility Preservation To Cancer Patients In Massachusetts, Brittany Raposa

University of Massachusetts Law Review

This Note addresses the issues related to fertility preservation treatments for cancer patients in the context of insurance coverage. As cancer survival rates improve, the ability to bear children after therapy is increasingly difficult and a concern for most patients. Currently, no states have laws requiring insurance coverage for fertility preservation treatments for cancer patients. Because it is not currently covered by either private or public insurance, only those who can pay for it on their own can use fertility preservation treatments. This note proposes that Massachusetts, as having one of the most inclusive infertility health insurance mandates, should expand …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Articles by Maurer Faculty

Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars' use of a "desperate woman" stereotype denies women's ability to critically assess the health risks and …

The Other Side Of Health Care Reform: An Analysis Of The Missed Opportunity Regarding Infertility Treatments., Nizan Geslevich Packin

The Scholar: St. Mary's Law Review on Race and Social Justice

Recent studies show that one in eight American couples suffered from infertility. Infertility treatments are riddled with accessibility barriers including high costs, marital status, and sexual orientation. Despite President Obama’s promise of universal health care, his health care reform acts missed the opportunity to squarely address this widespread problem. In fact, the recent health care reform did not include any provisions specific to fertility. Despite this glaring oversight, this article argues that regulators interpreting the acts can still provide the desired relief. The minimum coverage requirements beginning in 2014 can be interpreted to include fertility care if infertility is treated …

Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry Macintosh

Kerry L Macintosh

Infertile men and women have been using assisted reproductive technologies (“ART”) to conceive children since the first “test-tube baby” was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds for banning novel technologies such as cloning, nuclear transfer, and ooplasm transfer. Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (“IVF”) and intracytoplasmic sperm injection (“ICSI”). They claim children conceived through ART face an increased risk of birth defects and other health problems. This Article examines …

Employment Discrimination - In Vitro Fertilization And The Pregnancy Discrimination Act Of 1978: How Far Can The Courts Expand The Coverage Of The Pda To Protect Reproductive Technology, Justin A. Hinton

University of Arkansas at Little Rock Law Review

No abstract provided.

International Commercial Surrogacy And Its Parties, Margaret Ryznar

Margaret Ryznar

When discussing international commercial surrogacy, it is essential to remember that at the heart of this market are women and children, which requires an in-depth analysis of the issues that implicate these parties to a commercial surrogacy. In undertaking such an analysis, this Article considers the rights, interests, and obligations of these parties to a surrogacy, as well as the various opportunity costs of international commercial surrogacy. This framework is particularly relevant today as India, an international surrogacy hotspot for American couples, begins to legislate on the subject, and relatedly, as American states continue to grapple with issues regarding surrogacy.

Discrimination Out Of Dismissiveness: The Example Of Infertility, David Orentlicher

Indiana Law Journal

In recent years, antidiscrimination theory and doctrine have rested heavily on the "anticaste" principle first invoked in Strauder v. West Virginia According to this principle, equal protection law and antidiscrimination statutes should eradicate public-and private-policies that subject some persons to ongoing stigma and subordination and therefore to second-class status in society. This Article argues that while a focus on stigma and subordination is important, it misses a key source of discrimination-the discriminationt hat arises from dismissiveness. Antidiscrimination law has recognized the need to overcome the discrimination that results from invidious bias, unfair stereotyping, irrational fear accumulated myths, or simple neglect.A …

Courts' Struggle With Infertility: The Impact Of Hall V. Nalco On Infertility-Related Employment Discrimination, Kerry Van Der Burch

University of Colorado Law Review

This Note focuses on a recent Seventh Circuit case of first impression, Hall v. Nalco, which held that Title VII prohibits an employer from firing an employee for absenteeism related to infertility treatments. Because Hall is the first circuit court decision to rule that fertility-treatment discrimination can be a form of sex discrimination under Title VII, it represents a victory for infertile employees suffering from workplace discrimination. Yet Hall tells a tale of missed opportunities. This Note highlights how both the Seventh Circuit and the plaintiff, Cheryl Hall, missed opportunities to expand legal protection for employees undergoing infertility treatments. First, …

Conceivable Changes: Effectuating Infertile Couples' Emotional Ties To Frozen Embryos Through New Disposition Options, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

Hall V. Nalco Co.: Redefining Female Infertility, Erin Percy

Louisiana Law Review

No abstract provided.

Womens’ Right To Health In The Face Of New Reproductive Technologies, Angela Aparisi Miralles

Angela Aparisi Miralles

Abstract New reproductive technologies are based, to a great extent, on ostensibly coherent and articulate justificatory discourse, as well as on a concrete view of the woman. Certain assumptions are presented as axioms or “indisputable truths.” However, upon careful analysis it is revealed that far from being neutral or “real” facts, we find ourselves in the face of reductionisms, imprecisions, ideological constructs – clearly patriarchal – and even outright fallacies. Among them we can mention infertility being presented as the inability to fulfil oneself, the reduction of maternity to biological maternity, the consideration of infertility as an exclusively woman’s illness, …

Giving In To Baby Markets: Regulation Without Prohibition, Sonia M. Suter

Michigan Journal of Gender & Law

The commodification of reproductive material evokes different responses. Some argue that the sale of reproductive material should be prohibited. Others argue in favor of unfettered baby markets on principle or to achieve broad-scale access to reproductive technologies. In this Article, the author responds to the emergence of baby markets with great skepticism, but reluctant acceptance. Drawing on a relational conception of autonomy and self-definition, she argues that commodification of reproductive material is intrinsically harmful. Moreover, such commodification poses a number of consequential harms. Nevertheless, in spite of these concerns, the author "gives in" to baby markets, which is to say …

The Costs Of Multiple Gestation Pregnancies In Assisted Reproduction, Urska Velikonja

Faculty Scholarship

The United States, unlike most developed countries, does not regulate its fertility industry. Rather, it vests control over the industry to professional organizations and to market forces. While lack of regulation has produced a vibrant market for fertility services, it has also produced an undesirable consequence: a high rate of multiple gestation pregnancies, including twin pregnancies. This Article summarizes the data on the medical, psychological, and financial costs associated with multiple pregnancies to the parents, the children, and American society. It suggests that the current U.S. regulatory regime has not only failed to address these costs as they surfaced but …

The Curing Law: On The Evolution Of Baby-Making Markets, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a cure paradigm has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as a cure for infertility (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as a cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between 'full surrogacy" (where a surrogate is …

The Custody Battle Over Cryogenically Preserved Embryos After Divorce: Advocating For Infertile Women’S Rights, Cori S. Annapolen

ExpressO

This paper focuses on the struggles that infertile women face to achieve motherhood because their rights are underrepresented in the American court system. It specifically centers on how the process of in vitro fertilization (IVF) helps infertile women conceive children, but then details the problems that increasing technology now causes for these women after they freeze embryos and then divorce. Because the courts of only four states have determined who gets custody of these embryos after a divorce, and because the divorce rate and the number of couples utilizing IVF are increasing, future states will likely be forced to answer …

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

All Faculty Scholarship

Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit …

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

All Faculty Scholarship

Proceedings of the 2004 Annual Meeting, Association of American Law Schools, Sections on Employee Benefits and Employment Discrimination. Panel includes: Professor Colleen E. Medill; Professor Helen Norton; Eve Gartner, Esq.; and Professor Elizabeth Pendo.

Inconceivable? Deducting The Costs Of Fertility Treatment, Katherine Pratt

ExpressO

No abstract provided.

Cloning And The Preservation Of Family Integrity, David Orentlicher

Scholarly Works

No abstract provided.

"O Wind, Remind Him That I Have No Child": Infertility And Feminist Jurisprudence, Linda J. Lacey

Michigan Journal of Gender & Law

Feminists have constructed a "grand theory" of infertility and new reproductive techniques that has little to do with reality. Much of the discussion of reproductive technology is written in highly abstract, philosophical terms, rather than in the more experiential, narrative style which characterizes much of feminist jurisprudence. The infertile woman is generally voiceless and invisible in the telling of this story; when she does appear she is dismissed or criticized. This Article is an attempt to begin dialogue which incorporates her perspective into the discussion.

"To Be Or Not To Be A Parent?" The Search For A Solution To Custody Disputes Over Frozen Embryos, Esther M. Schonfeld

Touro Law Review

No abstract provided.

Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz

Michigan Law Review

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee's termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities Act of …

The Lay View Of What "Disability" Means Must Give Way To What Congress Says It Means: Infertility As A "Disability" Under The Americans With Disabilities Act, Deborah K. Dallmann

William & Mary Law Review

No abstract provided.