Reproduction Exam #2

How many births were the result of IVF in 2023/what percent?

95,000 or 2.6% of total births

Why are multiple embryos important in IVF

Standard IVF protocol aims to create multiple embryos per cycle to increase the chance of becoming pregnant in a single IVF procedure. Typically, only 70% of retrieved mature eggs end up fertilizing, with only half of these turning into an embryo. This embryo may also not plant into the uterine lining. Far cheaper to implant multiple embryos at the same time.

Multiple embryo IVF pros/risks

Pro- Higher possibility of conceiving in a single cycle, lower cost associated
Risk- Risk that multiple embryos may develop eg. increased risk of identical twins.

What is Restricted IVF

• Embryos should have legal rights that exceed the pregnant woman

• Only permits one embryo per cycle

• Prohibits the freezing of embryos

• Requires patients to put their embryos “up for adoption”

• Limits IVF to straight married couples with necessary gametes (sperm & eggs)

What are the implications of Restricted IVF

• Excludes unmarried couples, same-sex couples, or those who wish to use donor gametes

• Push up IVF costs

• Put women through more arduous cycles

• Does not recognize many of the problems of infertility. How can one per cycle be successful in a woman that is already suffering from infertility? What if the woman requires a donor egg?

• “Embryo adoption?” What if a couple does not want this embryo to be implanted into someone else? This would impose that decision upon them.

What is Blame-and-Shame Fertility?

• Places holistic infertility methods above and against treatments like IVF. Deems infertility as a personal failure.

  • Blames: Diet, Lifestyle, Age

  • Fix infertility through: Body temperature tracking, Menstrual cycle tracking, Cervical mucus monitoring

• Frames infertility as a woman-only issue, disregarding that male-factor infertility accounts for or contributes to 20-40%

• Presumes only heterosexual couples need access to fertility care

What are the implications of Blame-and-Shame Fertility?

• Place burden of infertility solely on women and cause stigmatization. Moral blame that if one can’t have a child, they are lacking as a person.

• Narrow vision of “family” that excludes LGBTQ, single, unmarried couples. Asserts blame if one deviates from this position.

• Delay access to IVF

• Siphon money out of public health programs in favor of Blame-and-Shame Fertility

What are Targeted Restrictions of IVF Providers (TRIP) Bills?

• Similar to abortion’s TRAP laws

• Designed through the regulatory process to make it physically or financially more difficult—and even impossible—for ART/IVF providers and clinics to provide these services. Usually under the guise of a health law.

• Allow lawmakers to determine standard of care

• Raise costs for less effective care than IVF

“LePage v. Center for Reproductive Medicine” Alabama Supreme Court IVF case background and facts

• Unauthorized stranger entered cryogenic facility through an unlocked door and tried to steal embryos. He picked these embryos up without gloves, and received severe freezer burns causing him to drop the embryos and kill them. Three couples were affected.

• These three couples sued under Alabama’s Sanctity of Life Amendment, which passed in 2018 and asserts personhood legal status to unborn life. Works to extend due process protections to the unborn.

• Trial Court determined that the human embryos did not fit the definition of a “person” or “child” and dismissed the case.

“LePage v. Center for Reproductive Medicine” Alabama Supreme Court IVF case holding

• Held that Alabama’s Wrongful Death Statute and the Alabama Constitution recognize the personhood of the preborn child at every stage of development regardless of whether the embryonic child is in the womb or outside of it.

• The clinic in question could be charged with a Wrongful death claim.

“LePage v. Center for Reproductive Medicine” Alabama Supreme Court IVF case reasoning

• There is no relevant biological distinction between embryos in freezers and embryos in the womb.

• Preborn rights do not have to be pitt against the mother

• In the case of an ectopic pregnancy, the embryonic child cannot be saved, and therefore the consensual removal of the embryo “could not establish the core elements of a wrongful-death claim, including breach of duty and causation.” It is not wrongful death because it wouldn’t have developed anyway.

“LePage v. Center for Reproductive Medicine” Alabama Supreme Court IVF case Parker concurrence

• Sanctity of life reasoning rooted deeply in Christian doctrine that defends Alabama’s amendment

• Asserts this decision in Constitutional supremacy. The Supreme Court of Alabama’s job is to uphold the Alabama Constitution. The voters passed this amendment, and the Court is only enforcing it. It is not their job to come up with further legislation.

• Many Western nations significantly regulate the IVF industry to prevent ethical abuses common in the unregulated United States IVF industry without completely banning the practice.

Alabama legislator response to “LePage v. Center for Reproductive Medicine” ruling

• Legislature quickly and overwhelmingly passed a bill that created blanket civil and criminal immunity for any person or entity who causes “damage to or death” of an embryonic human being when “providing or receiving services related to in vitro fertilization.”

• This was considered an overreaction because in other areas of medicine, there is not this blanket immunity. What if a provider purposefully killed a couple’s embryo due to personal reasons?

• Generally a regulatory vacuum for IVF

Mutcherson “The past is prologue: IVF, Abortion, and state regulation of procreation” Main argument

• IVF is entering a similar regulatory scheme to abortion, which should be cautioned against. Argues that IVF is unlikely to face the same legal fate as abortion due to is association with white, presumed heterosexual, and married users.

• It critiques the Fox’s and Ziegler’s call for federal regulation as both impractical and potentially harmful, politically naïve and insufficiently attentive to the race, class, and gender dynamics that have long shaped reproductive regulation in the United States

• Instead, this Piece advocates for a more nuanced, justice-centered approach that resists exceptionalism in regulating assisted reproduction and centers on the needs of marginalized communities.

Race and class argument: Mutcherson “The past is prologue: IVF, Abortion, and state regulation of procreation”

• Throughout U.S. history, procreative regulation has arisen from

  the desire to maintain white supremacy, uphold the patriarchy, and reinforce the role of women as wives (especially white women)

• This history accounts for why IVF has not yet been deeply regulated, and why it is unlikely to be in the future as the public face of IVF is opposite-sex, white, married couples.

  • Especially because IVF is quite expensive and is typically not covered by insurance

• Legislature reversal after LePage proves point that IVF is associated with upper or middle class white women. Even among those who oppose abortion, IVF is generally still popular.

What is Stratified Reproduction?

Reproduction is highly unequal and shaped by a hierarchy system that discourages or prevents some from reproducing while encouraging and supporting others. Based in race, class, and economic inequalities.

Selective reduction

Practice that terminates fetuses in a multiple fetal pregnancy, which is more common among people who utilize IVF.

Reproductive Justice Movement: Mutcherson “The past is prologue: IVF, Abortion, and state regulation of procreation”

• The Reproductive Justice Movement was a 1990s reproductive advocacy movement to increase access to infertility treatment for women of color.

• This mainstream movement though did not reflect the experience of women of color

Future legislation goals: Mutcherson “The past is prologue: IVF, Abortion, and state regulation of procreation”

• The goal of post Dobbs IVF legislation should be to not just protect IVF, but to create state-based strategies that will protect and promote marginalized individuals’ access to reproductive technologies.

• Fox and Ziegler argue a new agency should be created to regulate IVF. Mutcherson responds that this will raise costs and is already regulated through the market (because with such high costs, people will make sure they are going to a reputable clinic).

• Mutcherson is wary of advocating for increased IVF transparency because any instance of preventable error and harm caused by medical malpractice could invite TRIP laws, especially in the current political climate. There are other ways to increase transparency beyond the regulatory structure.

• Danger of creating a new IVF regulatory scheme may invite a similar conclusion as abortion, which essentially got regulated out of existence.

Backlash to Dobbs

• Dobbs went against public support for abortion

• Trigger laws immediately altered legal landscape as well as outdated restrictions which had never been formally repealed

• Does not acknowledge gender equity issues

• Media opportunities that accrue to the losing side. Abortion rights advocates have been able to seize control of the public narrative, focusing attention on excruciating consequences of abortion bans.

8 factors that contribute to Dobbs backlash

Overall idea, there will largely be more energy on the losing side.

• Judicial rulings are highly salient (visible)

• Not influenced by voters, with judges heavily removed from the life of an ordinary citizen

• Winners implement their victory in a way that causes resentment

• Loss may intensify losers’ concerns

• Politicians utilize rulings for political gains and intensify backlash

• Geographical variation in views, with losing and winning views concentrated in different states

• if the issue lacks a stable equilibrium, backlash may continue

• Media imagery will hone in on and exaggerate the worst effects of the legal ruling on one side or another

Democracy argument: Abortion politics after Roe

The democratic process works well to respond to the abortion issue

• Gerrymandering is not static, is engaged in by both parties, and has not yet strangled democracy. Pro-abortion candidates have still been able to secure difficult victories.

• Restrictive Voter Legislation has a limited real-world impact: voter turnout has been at record or near-record highs across the past three election cycles

• The authors respond that where referenda are available they have worked strongly in pro-choice voters' favor

Inconvenient Truths About Abortion: Abortion politics after Roe

When does a fetus become a baby?

• Implicates moral and philosophical questions

• Variability in abortion support depending on how far advanced the pregnancy is. Majority in first trimester, where 90% of abortions occur

• Is a very complicated and unique issue

The Interdependence of Mother and Fetus

• Two beings biologically tied together

• Women’s equality & autonomy vs protecting fetal life

• Right to life of the fetus imposes an obligation on the women, which departs from our normal civil conception of rights

Is Abortion like Same-Sex Marriage?

• More people have started to come out of the closet

• Each generation is more supportive of LGBTQ

• Same sex marriage compared to racial discrimination

• Sharp rise in the intensity of preference on the “pro” side of the same-sex marriage debate

• Each of these things have been similarly seen within the abortion debate

Three future abortion pathways: Abortion politics after Roe

• Federal abortion ban

  • Unlikely to gain majority support

• Reinstating Roe

  • More plausible given backlash to Dobbs but could be rejected by Supreme Court

• Federal 15-week cutoff

  • Most plausible, but is this really a compromise?

Alliance for Hippocratic Medicine v. Food and Drug Administration

Has to do with the approval process of mifepristone, the “abortion pill”. Supreme Court ruled that the litigants were not directly harmed, and therefore did not have the ability to sue. FDA though is rumored to be potentially looking into further testing for the drug, which would remove it from circulation until these studies are concluded.

Idaho v. United States

Determine whether the narrow carve-outs for abortion care under Idaho’s near-total abortion ban conflict with the broader mandated requirements for medical providers under the Emergency Medical Treatment and Labor Act (which deals with stabilization in emergency medical situations).

The case was dismissed.

How judges are now approaching abortion

Three cases:

• LePage v. Center for Reproductive Medicine

• Alliance for Hippocratic Medicine v. Food and Drug Administration

• Idaho v. United States

1. Judges are now inserting their own personal and religious beliefs into the decision-making process (Parker concurrence)

2. Judges who are not qualified in medicine are making health and scientific determinations based of discredited studies

Medina v. Planned Parenthood South Atlantic

• Found that Medicaid enrollees may not appeal to federal courts to enforce Medicaid’s “free-choice of provider provision.”

• With this decision, states have begun enforcing restrictions for where someone under Medicaid may obtain care. South Carolina policy: Medicaid enrollees may not obtain care from any provider that also provides abortion care → planned parenthood is where many obtain contraception. This is a way the Federal Gov defunds planned parenthood.

Main points: Most Women Can Still Get Abortion Pills. That May Soon Change.

• There are indirect ways the Federal Government may be using to limit abortion access

• Attacks telehealth abortion pill access, which allows women in red states to still obtain abortion pills.

• Comstock Act- which was passed in 1873 and has not been enforced for nearly a century but on paper still criminalizes the mailing of any item used for abortion.

Prosecution of women after abortion

• Woman took abortion pill to end pregnancy and was charged with murder and possession of a controlled substance and dangerous drug. Birthed fetus at hospital, determined to be in the second trimester and fetus died 1 hour later. Judge set bail at $1.

• Could affect women who suffer miscarriages. Should women be prosecuted?

Facts: Buck v. Bell

• Virginia Act states that he health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc

• Carrie Buck “feeble-minded” institutionalized woman who also has a feeble-minded mother and child. Argue that under substantive law, the ability to reproduce constitutes a fundamental right and needs to be protected.

• Additional background (not found directly in case): Buck was institutionalized for immorality, prostitution, and for having syphilis. She was pregnant at that time most likely because of rape. Her child later showed no signs of intellectual disability. She was sterilized without consent, as was her sister. Mainly, this has to do with her socioeconomic status.

Holding: Buck v. Bell

The Court held that reproduction is not a fundamental right, and that citizens could be sterilized for the good of society.

Aftermath: Buck vs. Bell

About two dozen states passed sterilization laws. Some commentators contend that this case was an inspiration for Nazi Germany.

Background: Skinner v. Oklahoma

• 1942; Skinner stole chickens and did armed robbery twice. He claimed that Oklahoma’s Habitual Criminal Sterilization Act violated his 14th Amendment rights.

• This act defines an ‘habitual criminal’ as a person who has been convicted two or more times for felonies ‘involving moral turpitude’ and allows them to be sterilized. Provision in the Act states that prohibitory laws, revenue acts, embezzlement, or political offenses are not counted.

Holding: Skinner v. Oklahoma

• Court held that a state law authorizing the forced sterilization of "habitual criminals" violated the Equal Protection Clause of the Fourteenth Amendment. The Oklahoma law arbitrarily applied to some crimes (e.g., larceny) but not others (e.g., embezzlement) without biological justification, it was unconstitutional.

• They did not overturn Buck v. Bell, nor find that forced sterilization is unconstitutional in their entirety, but stated that the right to exercise one's given reproductive abilities was a critical one, not to be taken away lightly. Also found that this right was subject to punishment at the states' discretion,

Stone concurrence: Skinner v. Oklahoma

Centered around a due process argument. Skinner was not given a hearing to determine whether or not his criminal tendencies were inheritable. Stone says this is a violation of personal liberty, and that without due process it should not be upheld. Still, he leaves open the opportunity that there can be sterilization if there’s proper procedures and due process.

Jackson concurrence: Skinner v. Oklahoma

Argues against there being a larger eugenics plan, but states that there are limits to which a court can conduct biological experiments at the expense of the dignity and personality of the minority, even if they have conducted crimes. This decision fails to address this limit.

Early history of eugenics in America

• Early 1900s: State eugenics advisory boards created to ensure that candidates for forced sterilization had their day in court. The purpose of these boards a was to eliminate undesirable populations and support desirable ones.

• 1927: Buck v. Bell upheld sterilization order. Legitimized and solidified the eugenics movement

• 1942: Skinner v. Oklahoma: American eugenics movement targeted people on the basis of class as well as the more easily recognized bases of disability and race. This case signaled some sort of distancing from Hitler’s eugenics.

• 1974: Relf sisters of Alabama: Involuntary sterilization laws had to be amended, federal funds could no longer be used for sterilizations on those judicially declared legally or mentally incompetent, the presence of any sort of coercion from a doctor or official would invalidate the voluntariness of the consent given.

• Charlie Follett (example)- Broad terms like "feeble-minded" allowed sterilization laws to be applied to illiterate, uneducated people or poor immigrants who did not speak English. Charlie was sterilized just because he was a ward of the state, for no other reason.

Continuous idea that people who are of lower socioeconomic status or are a “burden to society” should not have children because those children will just become burdens as well.

Relf sisters of Alabama (Relf v. Weinberger 1974)

• Background: The sisters were underage, black, and mentally disabled when they were sterilized; their mother, who consented to the federally funded operation on their behalf, believed they were receiving the same nonpermanent birth control shots they had received before.

• Holding:

  • In essence, the court held that an individual's right to privacy includes the freedom from government interference into the individual's fundamental liberties, especially ones that are as personal as having a child.

  • The court ordered the agency to amend the regulations authorizing involuntary sterilizations because they were arbitrary and unreasonable.

  • Permanently enjoined officials from providing federal funds for sterilizations on those judicially declared legally or mentally incompetent.

  • Held that the presence of any sort of coercion from a doctor or official would invalidate the voluntariness of the consent given

Eugenics in America today

• Forced sterilization became transformed from a civil movement to a criminal justice movement.

  • In California for example, over 150 women were sterilized in prisons between 2006 and 2010. Doctors were not neutral, and in some cases actively coerced women to be sterilized by arguing that these women may be better mothers if they were to undergo these procedures

  • Tennessee judge who offered shortened jail time in exchange for consent to sterilization implied that the subjects of his rule were too irresponsible to make reproductive decisions for themselves, and that he had given them the opportunity to live their lives "unburdened with children."

• The group most affected by these actions are incarcerated poor black women. Image of the “welfare queen”. Sense of “othering” which delegitimizes their motherhood and parenting.

• Outside of prisons: Negative eugenics

Negative eugenics

• Minimizing the procreation of undesirable groups (as opposed to positive eugenics, or official encouragement toward desirable groups to be fruitful and multiply)

• Example: Temporary Aid for Needy Families (TANF) where a single parent must work 20+ hours per week to receive aid. Prioritizes privileged women over marginalized.

How can the Skinner majority opinion be used today to help out those who are being forcefully sterilized in prisons?

• There is a lack of justification for these sterilizations and is not apart of their official punishment

• Coercion from doctors or judges do not allow for due process

How are forced sterilizations of disabled people conducted in the modern age?

• 31 states currently have laws that allow for forced sterilization. States that have no laws do guardians even need consent from a judge?

• Guardians for adults that are mentally disabled can consent to the sterilization of the disabled individual with permission of the court. Judge decides whether the disabled individual can consent to sterilization. If they cannot consent, the judge determines whether this would be in their best interest.

• Guardians seek sterilizations under the presumption that disabled people make poor decisions and would not be able to make a reasoned decision regarding whether or not to get pregnant. Pregnancy and caring for a child would also be difficult.

Background & Holding: Box v. Planned Parenthood of Indiana and Kentucky

• Two Indiana laws at play:

  • 1- The first challenged provision altered the manner in which abortion providers may dispose of fetal remains, preventing incineration of fetal remains along with surgical byproducts. It also authorized simultaneous cremation of fetal remains

  • 2- Indiana may prohibit the provision of sex-, race-, and disability specific abortions by abortion providers.

• Holding:

  • 1- Reversed lower court as an err, finding that courts states have a legitimate interest in the proper disposal of fetal remains for which this law is tailored to.

  • 2- Denied censori on this issue because only one court had thus far ruled on this issue.

Thomas Concurrence: Box v. Planned Parenthood of Indiana and Kentucky

• Agree wholeheartedly with decision of the court on fetal disposal law.

• Argues disability/sex/race specific abortion is a method of modern day eugenics, and the Indiana law promotes the states compelling interest in preventing this. Uses historical class based and race based elements or eugenics to justify this connection.

• He also makes a connection between abortion, birth control, and selective ability to conceive. Through these methods, you can essentially choose which children you want to have which opens the door to a variety of eugenic practices.

Ginsburg, concurring in part and dissenting in part: Box v. Planned Parenthood of Indiana and Kentucky

• Agrees with the Court’s disposition of the second question presented

• She would have also denied censori for the disposal law, but would have applied a heightened standard this because it involves abortion, though not directly. She would have utilized the “undue burden” test.

Social Darwinism

The application of the “survival of the fittest” principle to human society. Prominent belief in late 1800s/early 1900s which justified both eugenics and capitalism. Justified social and economic inequality.